text:
14-10-122. Modification and termination of provisions for maintenance, support, and property disposition - automatic lien - definitions
(1) (a) Except as otherwise provided in sections 14-10-112 (6) and 14-10-115 (11)(c), the provisions of any decree respecting maintenance may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unfair, and, except as otherwise provided in subsection (5) of this section, the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of changed circumstances that are substantial and continuing or on the ground that the order does not contain a provision regarding medical support, such as insurance coverage, payment for medical insurance deductibles and copayments, or unreimbursed medical expenses. The provisions as to property disposition may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment.
(b) Application of the child support guidelines and schedule of basic child support obligations set forth in section 14-10-115 to the circumstances of the parties at the time of the filing of a motion for modification of the child support order which results in less than a ten percent change in the amount of support due per month shall be deemed not to be a substantial and continuing change of circumstances.
(c) In any action or proceeding in any court of this state in which child support, maintenance when combined with child support, or maintenance is ordered, a payment becomes a final money judgment, referred to in this section as a support judgment, when it is due and not paid. Such payment is not retroactively modified except pursuant to subsection (1)(a) of this section and may be enforced as other judgments without further action by the court; except that an existing child support order with respect to child support payable by the obligor may be modified retroactively to the time that a mutually agreed upon change of physical custody occurs pursuant to subsection (5) of this section. A support judgment is entitled to full faith and credit and may be enforced in any court of this state or any other state. In order to enforce a support judgment, the obligee shall file with the court that issued the order a verified entry of support judgment specifying the period of time that the support judgment covers and the total amount of the support judgment for that period. The obligee or the delegate child support enforcement unit is not required to wait fourteen days to execute on such support judgment. However, a copy of the verified entry of support judgment must be provided to all parties pursuant to rule 5 of the Colorado rules of civil procedure, upon filing with the court. A verified entry of support judgment is not required to be signed by an attorney. A verified entry of support judgment may be used to enforce a support judgment for debt entered pursuant to section 14-14-104. The filing of a verified entry of support judgment revives all individual support judgments that have arisen during the period of time specified in the entry of support judgment and that have not been satisfied, pursuant to rule 54 (h) of the Colorado rules of civil procedure, without the requirement of a separate motion, notice, or hearing. Notwithstanding the provisions of this subsection (1)(c), no court order for support judgment nor verified entry of support judgment is required in order for the county and state child support enforcement units to certify past-due amounts of child support to the internal revenue service or to the department of revenue for purposes of intercepting a federal or state tax refund or lottery winnings.
(d) If maintenance or child support is modified pursuant to this section, the 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 or unless there has been a mutually agreed upon change of physical custody as provided for in subsection (5) of this section. In no instance shall the order be retroactively modified prior to the date of filing, unless there has been a mutually agreed upon change of physical custody. The court may modify installments of maintenance or child support due between the filing of the motion and the entry of the order even if the circumstances justifying the modification no longer exist at the time the order is entered.
(1.5) (a)Lien by operation of law. (I) Commencing July 1, 1997, all cases in which services are provided in accordance with Title IV-D of the federal Social Security Act, as amended, referred to in this subsection (1.5) as IV-D cases, shall be subject to the provisions of this subsection (1.5), regardless of the date the order for child support was entered. In any IV-D case in which current child support, child support when combined with maintenance, or maintenance has been ordered, a payment becomes a support judgment when it is due and not paid, and a lien therefor is created by operation of law against the obligors real and personal property and any interest in any such real or personal property. The entry of an order for child support debt, retroactive child support, or child support arrearages or a verified entry of judgment pursuant to this section creates a lien by operation of law against the obligors real and personal property and any interest in any such real and personal property.
(II) The amount of such lien shall be limited to the amount of the support judgment for outstanding child support, child support when combined with maintenance, maintenance, child support debt, retroactive child support, or child support arrearages, any interest accrued thereon, and the amount of any filing fees as specified in this section.
(III) A support judgment or lien shall be entitled to full faith and credit and may be enforced in any court of this state or any other state. Full faith and credit shall be accorded to such a lien arising from another state that complies with the provisions of this subsection (1.5). Judicial notice or hearing or the filing of a verified entry of judgment shall not be required prior to the enforcement of such a lien.
(IV) The creation of a lien pursuant to this section shall be in addition to any other remedy allowed by law.
(b) Lien on real property.
(I) To evidence a lien on real property created pursuant to this subsection (1.5), a delegate child support enforcement unit shall issue a notice of lien and record the same in the real estate records in the office of the clerk and recorder of any county in the state of Colorado in which the obligor holds an interest in real property. From the time of recording of the notice of lien, such lien shall be an encumbrance in favor of the obligee, or the assignee of the obligee, and shall encumber any interest of the obligor in any real property in such county.
(II) The lien on real property created by this section shall remain in effect for the earlier of twelve years or until all past-due amounts are paid, including any accrued interest and costs, without the necessity of renewal. A lien on real property arising pursuant to this subsection (1.5) may be extended or renewed indefinitely beyond twelve years by rerecording the lien every twelve years. Within twenty calendar days after satisfaction of the debt or debts described in the notice of lien, the delegate child support enforcement unit shall record a release of lien with the clerk and recorder of the county where the notice of lien was recorded. A release of lien shall be conclusive evidence that the lien is extinguished.
(III) The child support enforcement unit shall be exempt from the payment of recording fees charged by the clerk and recorder for the recording of notices of lien or releases of lien.
(c) Lien on personal property other than wages, insurance claim payments, awards, and settlements, and money held by a financial institution as defined in 42 U.S.C. sec. 669a (d)(1) or motor vehicles.
(I) To evidence a lien on personal property, other than wages; insurance claim payments, awards, and settlements as authorized in section 26-13-122.7; accounts as authorized in section 26-13-122.3; and money held by a financial institution as defined in 42 U.S.C. sec. 669a (d)(1) or motor vehicles, created pursuant to this subsection (1.5), the state child support enforcement agency shall file a notice of lien with the secretary of state by means of direct electronic data transmission. From the time of filing the notice of lien with the secretary of state, the lien is an encumbrance in favor of the obligee, or the assignee of the obligee, and encumbers all personal property or any interest of the obligor in any personal property.
(II) The lien on personal property created by this section shall remain in effect for the earlier of twelve years or until all past-due amounts are paid, including any accrued interest and costs, without the necessity of renewal. A lien on personal property arising pursuant to this subsection (1.5) may be extended or renewed indefinitely beyond twelve years by rerecording the lien every twelve years. Within twenty calendar days after satisfaction of the debt or debts described in the notice of lien, the state child support enforcement agency shall file a release of lien with the secretary of state. The filing of such a release of lien shall be conclusive evidence that the lien is extinguished.
(III) The state child support enforcement agency shall be exempt from paying a fee for the filing of notices of liens or releases of liens with the secretary of state pursuant to this paragraph (c).
(IV) For purposes of this paragraph (c), personal property means property that the child support enforcement agency has determined has a net equity value of not less than five thousand dollars at the time of the filing of the notice of lien with the secretary of state.
(d) Lien on motor vehicles.
(I) (A) To evidence a lien on a motor vehicle created pursuant to this subsection (1.5), a delegate child support enforcement unit shall issue a notice of lien to the authorized agent as defined in section 42-6-102 (1.5) by first class mail. From the time of filing of the lien for public record and the notation of such lien on the owners certificate of title, such lien shall be an encumbrance in favor of the obligee, or the assignee of the obligee, and must encumber any interest of the obligor in the motor vehicle. In order for any such lien to be effective as a valid lien against a motor vehicle, the obligee, or assignee of the obligee, shall have such lien filed for public record and noted on the owners certificate of title in the manner provided in sections 42-6-121 and 42-6-129.
(B) Liens on motor vehicles created by this section shall remain in effect for the same period of time as any other lien on motor vehicles as specified in section 42-6-127, C.R.S., or until the entire amount of the lien is paid, whichever occurs first. A lien created pursuant to this section may be renewed pursuant to section 42-6-127, C.R.S. Within twenty calendar days after satisfaction of the debt or debts described in the notice of lien, the delegate child support enforcement unit shall release the lien pursuant to the procedures specified in section 42-6-125, C.R.S. When a lien on a motor vehicle created pursuant to this subsection (1.5) is released, the authorized agent and the executive director of the department of revenue shall proceed as provided in section 42-6-126, C.R.S.
(C) The child support enforcement unit shall not be exempt from the payment of filing fees charged by the authorized agent for the filing of either the notice of lien or the release of lien. However, the child support enforcement unit may add the amount of the filing fee to the lien amount and collect the amount of such fees from the obligor.
(II) For purposes of this subsection (1.5), motor vehicle means any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways, trailers, semitrailers, and trailer coaches, without motive power; that has a net equity value based upon the loan value identified for such vehicle in the national automobile dealers association car guide of not less than five thousand dollars at the time of the filing of the notice of lien and that meets such additional conditions as the state board of human services may establish by rule; and on which vehicle a lien already exists that is filed for public record and noted accordingly on the owners certificate of title. Motor vehicle does not include low-power scooters, as defined in section 42-1-102, C.R.S.; vehicles that operate only upon rails or tracks laid in place on the ground or that travel through the air or that derive their motive power from overhead electric lines; farm tractors, farm trailers, and other machines and tools used in the production, harvesting, and care of farm products; and special mobile machinery or industrial machinery not designed primarily for highway transportation. Motor vehicle does not include a vehicle that has a net equity value based upon the loan value identified for such vehicle in the national automobile dealers association car guide of less than five thousand dollars at the time of the filing of the notice of lien and does not include a vehicle that is not otherwise encumbered by a lien or mortgage that is filed for public record and noted accordingly on the owners certificate of title.
(e) Priority of a lien.
(I) A lien on real property created pursuant to this section shall be in effect for the earlier of twelve years or until all past-due amounts are paid and shall have priority over all unrecorded liens and all subsequent recorded or unrecorded liens from the time of recording, except such liens as may be exempted by regulation of the state board of human services. A lien on real property arising pursuant to this subsection (1.5) may be extended or renewed indefinitely beyond twelve years by rerecording the lien every twelve years.
(II) A lien on personal property, other than motor vehicles, created pursuant to this section shall be in effect for the earlier of twelve years or until all past-due amounts are paid and shall have priority from the time the lien is filed with the central filing officer over all unfiled liens and all subsequent filed or unfiled liens, except such liens as may be exempted by regulation of the state board of human services. A lien on personal property arising pursuant to this subsection (1.5) may be extended or renewed indefinitely beyond twelve years by rerecording the lien every twelve years.
(III) Liens on motor vehicles created pursuant to this section shall remain in effect for the same period of time as any other lien on motor vehicles as specified in section 42-6-127, C.R.S., or until all past-due amounts are paid, whichever occurs first, and shall have priority from the time the lien is filed for public record and noted on the owners certificate of title over all unfiled liens and all subsequent filed or unfiled liens, except such liens as may be exempted by regulation of the state board of human services.
(f) Notice of lien - contents.
(I) The notice of lien shall contain the following information:
(A) The name and address of the delegate child support enforcement unit and the name of the obligee or the assignee of the obligee as grantee of the lien;
(B) The name, social security number, and last-known address of the obligor as grantor of the lien;
(C) The year, make, and vehicle identification number of any motor vehicle for liens arising pursuant to paragraph (d) of this subsection (1.5);
(D) A general description of the personal property for liens arising pursuant to paragraph (c) of this subsection (1.5);
(E) The county and court case number of the court of record that issued the order of current child support, child support debt, retroactive child support, child support arrearages, child support when combined with maintenance, or maintenance or of the court of record where the verified entry of judgment was filed;
(F) The date the order was entered;
(G) The date the obligation commenced;
(H) The amount of the order for current child support, child support debt, retroactive child support, child support arrearages, child support when combined with maintenance, or maintenance;
(I) The total amount of past-due support as of a date certain; and
(J) A statement that interest may accrue on all amounts ordered to be paid, pursuant to sections 14-14-106 and 5-12-101, C.R.S., and may be collected from the obligor in addition to costs of sale, attorney fees, and any other costs or fees incident to such sale for liens arising pursuant to paragraphs (b) and (c) of this subsection (1.5).
(II) For purposes of liens against motor vehicles, the notice of lien shall include the information set forth in subparagraph (I) of this paragraph (f) in addition to the information specified in section 42-6-120, C.R.S.
(g) Rules. The state board of human services shall promulgate rules and regulations concerning the procedures and mechanism by which to implement this subsection (1.5).
(h) Bona fide purchasers - bona fide lenders.
(I) The provisions of this subsection (1.5) shall not apply to any bona fide purchaser who acquires an interest in any personal property or any motor vehicle without notice of the lien or to any bona fide lender who lent money to the obligor without notice of the lien the security or partial security for which is any personal property or motor vehicle of such obligor.
(II) For purposes of this paragraph (h):
(A) Bona fide purchaser means a purchaser for value in good faith and without notice of an adverse claim, including but not limited to an automatic lien arising pursuant to this subsection (1.5).
(B) Bona fide lender means a lender for value in good faith and without notice of an adverse claim, including but not limited to an automatic lien arising pursuant to this subsection (1.5).
(i) No liability. No clerk and recorder, authorized agent as defined in section 42-6-102 (1.5), financial institution, lienholder, or filing officer, nor any employee of any of such persons or entities, shall be liable for damages for actions taken in good faith compliance with this subsection (1.5).
(j) Definition. For purposes of this subsection (1.5), child support debt shall have the same meaning as set forth in section 26-13.5-102 (3), C.R.S.
(2) (a) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the earlier of:
(I) The death of either party;
(II) The end of the maintenance term, unless a motion for modification is filed prior to the expiration of the term;
(III) The remarriage of or the establishment of a civil union by the party receiving maintenance; or
(IV) A court order terminating maintenance.
(b) A payor spouse whose income is reduced or terminated due to his or her retirement after reaching full retirement age is entitled to a rebuttable presumption that the retirement is in good faith.
(c) For purposes of this subsection (2), full retirement age means the payors usual or ordinary retirement age when he or she would be eligible for full United States social security benefits, regardless of whether he or she is ineligible for social security benefits for some reason other than attaining full retirement age. Full retirement age shall not mean early retirement age if early retirement is available to the payor spouse, nor shall it mean maximum benefit retirement age if additional benefits are available as a result of delayed retirement.
(3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child but not by the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.
(4) Notwithstanding the provisions of subsection (1) of this section, the provisions of any decree respecting child support may be modified as a result of the change in age for the duty of support as provided in section 14-10-115 (15), but only as to installments accruing subsequent to the filing of the motion for modification; except that section 14-10-115 (15)(b) does not apply to modifications of child support orders with respect to a child who has already achieved the age of nineteen as of July 1, 1991.
(5) Notwithstanding the provisions of subsection (1) of this section, when a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified or terminated as of the date when physical care was changed. The provisions for the establishment of a child support order based on a court-ordered, voluntary, or mutually agreed upon change of physical care may also be entered retroactively to the date when the physical care was changed. When a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, parties are encouraged to avail themselves of the provision set forth in section 14-10-115 (14)(a) for updating and modifying a child support order without a court hearing. The court shall not modify child support pursuant to this subsection (5) for any time more than five years prior to the filing of the motion to modify child support, unless the court finds that its application would be substantially inequitable, unjust, or inappropriate. The five-year prohibition on retroactive modification does not preclude a request for relief pursuant to any statute or court rule.
(6) (a) Notwithstanding any other provisions of this article, within the time frames set forth in paragraph (c) of this subsection (6), the individual named as the father in the order may file a motion to modify or terminate an order for child support entered pursuant to this article if genetic test results based on DNA testing, administered in accordance with section 13-25-126, C.R.S., establish the exclusion of the individual named as the father in the order as the biological parent of the child for whose benefit the child support order was entered.
(b) If the court finds pursuant to paragraph (a) of this subsection (6) that the individual named as the father in the order is not the biological parent of the child for whose benefit the child support order was entered and that it is just and proper under the circumstances and in the best interests of the child, the court shall modify the provisions of the order for support with respect to that child by terminating the child support obligation as to installments accruing subsequent to the filing of the motion for modification or termination, and the court may vacate or deem as satisfied, in whole or in part, unpaid child support obligations arising from or based upon the order determining parentage. The court shall not order restitution from the state for any sums paid to or collected by the state for the benefit of the child.
(c) (I) A motion to modify or terminate an order for child support pursuant to this subsection (6) must be filed within two years from the date of the entry of the initial order establishing the child support obligation.
(II) Repealed.
(d) Notwithstanding the provisions of paragraphs (a) and (b) of this subsection (6), a court order for child support shall not be modified or terminated pursuant to this subsection (6) if:
(I) The child support obligor acknowledged paternity pursuant to section 19-4-105 (1)(c) or (1)(e), C.R.S., knowing that he was not the father of the child;
(II) The child was adopted by the child support obligor; or
(III) The child was conceived by means of assisted reproduction.
(e) A motion filed pursuant to this section may be brought by the individual named as the father in the order and shall be served in the manner set forth in the Colorado rules of civil procedure upon all other parties. The court shall not modify or set aside a final order determining parentage pursuant to this section without a hearing.
(f) For purposes of this subsection (6), DNA means deoxyribonucleic acid.
Source: L. 71: R&RE, p. 529, 1. C.R.S. 1963: 46-1-22. L. 86: (1) amended, p. 724, 3, effective November 1. L. 87: (1)(c) added, p. 587, 4, effective July 10. L. 88: (1)(c) amended, p. 633, 7, effective July 1. L. 89: (1)(a) and (1)(c) amended, p. 792, 16, effective July 1. L. 90: (1)(c) amended, p. 891, 11, effective July 1. L. 91: (4) and (5) added, pp. 238, 253, 2, 8, effective July 1. L. 92: (1)(d) added, p. 203, 10, effective August 1. L. 93: (1)(a) amended, p. 1557, 2, effective July 1. L. 97: (1)(c) amended, p. 561, 6, effective July 1; (1.5) added, p. 1266, 9, effective July 1. L. 98: (1)(a), (1)(c), (1)(d), and (5) amended, p. 764, 14, effective July 1; (5) amended, p. 1400, 46, effective February 1, 1999. L. 99: (1.5)(c), (1.5)(e)(II), and (1.5)(i) amended, p. 751, 21, effective January 1, 2000. L. 2000: (1.5)(b)(II) amended, p. 1704, 1, effective July 1. L. 2001: (1.5)(c) amended, p. 1445, 38, effective July 1. L. 2004: (1.5)(b)(II), (1.5)(c)(II), (1.5)(e)(I), and (1.5)(e)(II) amended, p. 386, 2, effective July 1. L. 2007: (1)(b), (4), and (5) amended, p. 107, 3, effective March 16. L. 2008: (6) added, p. 1656, 3, effective August 15. L. 2009: (1.5)(d)(II) amended,(HB 09-1026), ch. 281, p. 1258, 19, effective October 1. L. 2010: (1.5)(d)(II) amended,(HB 10-1172), ch. 320, p. 1493, 18, effective October 1. L. 2012: (1)(c) amended,(SB 12-175), ch. 208, p. 831, 28, effective July 1. L. 2013: (1.5)(c)(I) amended,(HB 13-1300), ch. 316, p. 1675, 35, effective August 7; (1)(a) and (5) amended,(HB 13-1209), ch. 103, p. 354, 3, effective January 1, 2014; (2) amended,(HB 13-1058), ch. 176, p. 652, 2, effective January 1, 2014. L. 2014: (2)(a)(III) amended,(HB 14-1379), ch. 307, p. 1300, 2, effective May 31. L. 2016: (1.5)(c)(I) and (5) amended, (HB 16-1165), ch. 157, pp. 490, 496, 2, 8, effective January 1, 2017. L. 2017: (1.5)(d)(I)(A) and (1.5)(i) amended,(SB 17-294), ch. 264, p. 1391, 30, effective May 25. L. 2019: (1)(c) and (1.5)(c)(I) amended,(HB 19-1215), ch. 270, p. 2552, 3, effective July 1.
Editors note: (1) Amendments to subsection (5) by Senate Bill 98-139 and House Bill 98-1183 were harmonized, effective February 1, 1999.
(2) The term custody has been changed in other places in the Colorado Revised Statutes to correspond with the use of the term parental responsibility as described in 14-10-124.
(3) Subsection (6)(c)(II)(B) provided for the repeal of subsection (6)(c)(II), effective July 1, 2011. (See L. 2008, p. 1656.)
Cross references: For the legislative declaration contained in the 1997 act enacting subsection (1.5), see section 1 of chapter 236, Session Laws of Colorado 1997.
Law reviews. For note, Interstate Modification of Support Decrees, see 28 Rocky Mt. L. Rev. 355 . For article, The Economy: Its Effects on Family Law, see 11 Colo. Law. 97 (1982). For article, Automatic Escalation Clauses Relating to Maintenance and Child Support, see 12 Colo. Law. 1083 (1983). For article, Support Calculation Revisited, see 12 Colo. Law. 1647 (1983). For article, The Continued Jurisdiction of the Court to Modify Maintenance, see 13 Colo. Law. 62 (1984). For article, Domestic Case Update, see 14 Colo. Law. 209 (1985). For article, Child Support Obligations After Death of the Supporting Parent, see 16 Colo. Law. 790 (1987). For article, Maintenance in Colorado: Issues and Factors, see 21 Colo. Law. 2399 (1992). For article, Overcoming Difficulties in Collecting Child Support and Maintenance, see 24 Colo. Law. 2725 (1995). For article, "Post-dissolution Maintenance Review in Trial Court Under CRS 14-10-114 or -122", see 26 Colo. Law. 93 (July 1997). For article, Postsecondary Education Expenses after Chalat: Paying College Expenses after Divorce, see 38 Colo. Law. 19 (Jan. 2009). For article, Modifying or Terminating Maintenance Based on Cohabitation, see 38 Colo. Law. 45 (June 2009). For article, The Modification of a Denial of Spousal Maintenance at Permanent Orders, see 39 Colo. Law. 37 (Feb. 2010). For article, Retroactive Child Support: Conflicting Decisions and Practical Advice, see 41 Colo. Law. 91 (Aug. 2012). For article, Maintenance Revisited The New Act, see 42 Colo. Law. 69 (Nov. 2013). For article, Leap of Faith: Retiring while Paying Spousal Maintenance, see 48 Colo. Law. 28 (Oct. 2019).
Annotators note. Cases relevant to 14-10-122 (1) decided prior to its earliest source, L. 71, p. 529, 1, have been included in the annotations to this section.
This section effects a legislative abrogation of the common law that developed under the divorce statutes operative prior to the uniform dissolution of marriage act. In re Icke, 189 Colo. 319, 540 P.2d 1076 (1975).
For the effect of this section on prior law, see In re Edwards, 39 Colo. App. 26, 560 P.2d 849 (1977).
Abatement of maintenance payments not authorized by this section. In re Ward, 717 P.2d 513 (Colo. App. 1985).
Social security benefits may be credited towards support obligation. Social security disability benefit payments and social security retirement benefit payments for minor children may, at the discretion of the trial court, be credited toward a fathers obligation to pay support. In re Robinson, 651 P.2d 454 (Colo. App. 1982).
When social security disability benefit payments for children are set off against a fathers obligation to pay support, the father is entitled to credit only up to the extent of his obligation for monthly payments of child support, but not in excess thereof. In re Robinson, 651 P.2d 454 (Colo. App. 1982).
Life insurance reasonable means of meeting obligation. The maintenance of a life insurance policy with the former husbands minor children as beneficiaries provides a reasonable and practical means by which the obligation under this section can be met. In re Icke, 189 Colo. 319, 540 P.2d 1076 (1975).
Where the husband was in very poor health, suffering from diabetes and high blood pressure, had heart damage and had previously suffered a stroke, and furthermore, because of his poor health, the husband was under doctors orders to work in a low pressure occupation, the trial court did not err in ordering the husband to carry a life insurance in favor of his former wife. In re Koktavy, 44 Colo. App. 305, 612 P.2d 1161 (1980).
Court may order life insurance naming children as beneficiaries be maintained by parent obligated to pay child support, just as its provisions for child support now extend beyond the death of the parent, unless otherwise provided. In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), affd, 189 Colo. 319, 540 P.2d 1076 (1975).
Valuation of undisclosed assets. Once property has been divided pursuant to 14-10-113, such property becomes akin to separate property, and any increase in the value of ownership interest therein should be considered when determining valuation. The failure to do so constitutes a confiscatory taking. In re Hiner, 710 P.2d 488 (Colo. 1985).
The doctrine of equitable estoppel may properly be applied to afford relief from accrued arrearages in child support if the party asserting the claim demonstrates reasonable reliance, to the partys detriment, upon the acts or representations of the other person and lack of knowledge or convenient means of knowing the facts. In re Dennin & Lohf, 811 P.2d 449 (Colo. App. 1991).
The doctrine of equitable estoppel did not prevent enforcement of California decree to pay child support where fathers failure to pay ordered amount or to seek modification did not fall within any of the special circumstances for which estoppel is applicable. In re Barone, 895 P.2d 1075 (Colo. App. 1994).
Where a court finds that the doctrine of equitable estoppel will support a reduction in child support arrearages due to a parents misconduct, the court must determine whether such reduction meets the statutory policies contained in 14-10-115 and whether such reduction will damage the childs interests. The courts calculation of the reduction of the arrearages must be based on the amount of child support that would have been paid but for the misconduct of the parent. In re Anthony-Guillar, 207 P.3d 934 (Colo. App. 2009).
Child support obligations may be modified only as to installments accruing after motion to modify has been filed. In re Pote, 847 P.2d 246 (Colo. App. 1993) (decided under law in effect prior to 1991 amendment relating to voluntary change of physical custody).
The provisions of any decree respecting child support may be modified only as to installments accruing after the filing for modification. Thus, the trial courts ability to modify retroactively an accrued child support obligation is severely restricted. In re Wright, 924 P.2d 1207 (Colo. App. 1996).
Interest accrues on arrearages from the date each installment becomes due. In re Pote, 847 P.2d 246 (Colo. App. 1993).
Entry of a judgment pursuant to this section for past due support payments will not alter a trial courts authority to enforce its order underlying that judgment through contempt proceedings. The entry of a judgment, by operation of law pursuant to this section, does not deprive the trial court of its authority to enforce its child support and maintenance orders underlying the judgment. In re Nussbeck, 974 P.2d 493 (Colo. 1999) (overruling In re Woodrum, 618 P.2d 732 (Colo. App. 1980)).
Order on post-decree modification of maintenance is final, appealable order despite unresolved request for attorney fees. Attorney fee request sought in post-decree motion is no longer an integral and substantive part of the proceeding but is ancillary to the motion and may be decided separately. In re Nelson, 2012 COA 205, 292 P.3d 1214.
Applied in Blank v. District Court, 190 Colo. 114, 543 P.2d 1255 (1975); Glickman v. Mesigh, 200 Colo. 320, 615 P.2d 23 (1980); Soehner v. Soehner, 642 P.2d 27 (Colo. App. 1981); In re Manzo, 659 P.2d 669 (Colo. 1983); In re Ward, 670 P.2d 1260 (Colo. App. 1983); In re Hauger, 679 P.2d 604 (Colo. App. 1984); In re Burns, 717 P.2d 991 (Colo. App. 1985); In re Aragon, 773 P.2d 1110 (Colo. App. 1989); In re Wisdom, 833 P.2d 884 (Colo. App. 1992).
II.MODIFICATION.
A.Procedure.
Application for increase of alimony, and not contempt proceeding, was proper remedy of divorced wife complaining of reduction of alimony by court order. Weydeveld v. Weydeveld, 100 Colo. 301, 67 P.2d 72 (1937).
Orderly process requires a motion for modification of support payments, notice thereof, and a setting of the matter for hearing and disposition, and the party opposing modification has the right to prepare for such issue and present countervailing evidence. Wheeler v. Wheeler, 155 Colo. 7, 392 P.2d 285 (1964).
The mere filing of a petition to modify support payments and even having a hearing thereon without proceeding to a conclusion and the entry of an order thereon can have no legal effect. Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963).
The former statute of 1883 made provision for a reasonable and proper alteration in the amount of alimony allowed in a decree of divorce, and was held to contemplate that when such a change occurred in the condition or circumstances of the parties as renders a modification of the decree in this respect proper, that the application therefor should be made to the trial court, but such an application, necessarily based on new and additional matters, could be entertained in the supreme court on a petition for a rehearing of an appeal, although the original decree was here modified on the hearing. Luthe v. Luthe, 12 Colo. 421, 21 P. 467 (1889).
A judgment modifying, or refusing to modify, that part of the original divorce decree awarding alimony was a judgment in a divorce action, and was clearly subject to the requirement of notice as to a review, as was the original judgment or decree. Diegel v. Diegel, 73 Colo. 330, 215 P. 143 (1923).
Where a modification of a decree awarding alimony was sought, the application, though made in the same case, was upon a petition asserting new facts, and upon a new notice, and the judgment of the court thereon was a final judgment to which a writ of error would lie. Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766 (1912).
Order specifying amount where original order merely imposed duty. Where an original court order imposes a duty of support without specifying an amount under the criteria of 14-10-115, a subsequent court order specifying the amount need only conform with 14-10-115 rather than the modification requirements of this section. In re Saiz, 634 P.2d 1020 (Colo. App. 1981).
Reference to C.R.C.P. 60 to reopen judgment. There is no specific provision in this section, controlling the procedure by which a property division order may be reopened. Therefore, in order to determine whether the judgment may be reopened, reference must be made to C.R.C.P. 60. In re Scheuerman, 42 Colo. App. 206, 591 P.2d 1044 (1979).
Appropriate motion required to alter, amend, or vacate original trial courts order. Original trial courts order valuing the marital property was a valid final judgment which could be altered only upon appropriate motion under either C.R.C.P. 59 or 60. In re McKendry, 735 P.2d 908 (Colo. App. 1986).
The provisions of this section governing retroactive modification of child support upon a change of physical custody conflict with, but control over, C.R.C.P. 60 (b) because subsection (1)(c) expressly provides for retroactive modification of child support without imposing any time limit. In re Green, 93 P.3d 614 (Colo. App. 2004).
Upon registration, decree of foreign court becomes in effect a Colorado order, and is subject to the same limitations as to modification as if entered in a Colorado court. Such orders can only be modified by compliance with this section. Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981).
Informal motion to modify is permissible. Unless due process is violated, the informality of an oral motion by one party to set aside the property agreement amounts to no more than an irregularity which does not affect the jurisdiction of the district court. In re Stroud, 631 P.2d 168 (Colo. 1981).
A property division is final and nonmodifiable absent conditions justifying relief from judgment. In re Wells, 833 P.2d 797 (Colo. App. 1991).
Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial courts division of property it is not necessary that the court be able to reconsider the property division in order to correct error in the provisions for maintenance and attorney fees. In re Jones, 627 P.2d 248 (Colo. 1981).
Findings based on needs and circumstances on hearing date. In modification of support orders, the court must base its findings and orders on the needs of the children and the circumstances of the parents at the time of the hearing rather than on what those conditions might have been in the past or may be in the future. In re Serfoss, 642 P.2d 44 (Colo. App. 1981).
In modification of maintenance, court must base its findings and orders on needs and circumstances of parties at the time of the hearing rather than on what those conditions might have been in the past or may be in the future and should consider the parties actual financial situation and their ability to earn. In re Ward, 717 P.2d 513 (Colo. App. 1985).
Although a separation agreement incorporated into a decree may expressly prohibit any modification of maintenance provisions contained therein, a district court may modify the maintenance provisions of a separation agreement incorporated into a dissolution decree on grounds of unconscionability if the agreement is silent on the subject or if the parties specifically reserve such power to the court. Any effort to limit or preclude the authority of district court to modify the maintenance provision of separation agreement must be articulated by language that is specific and unequivocal. In re Udis, 780 P.2d 499 (Colo. 1989).
Family law referee lacks authority to hear a motion for the modification of child support when the party against whom such motion is filed objects to a hearing before a referee. In re Mead, 765 P.2d 1072 (Colo. App. 1988).
In those cases in which a child support obligation has been ordered and the obligated parent becomes eligible for social security benefits, a motion to modify child support is required before the child support obligation of the parent may be reduced by the amount of social security benefits paid for the benefit of the child. In re Wright, 924 P.2d 1207 (Colo. App. 1996).
B.Unconscionability.
Premise for challenge to separation agreement. A challenge to a separation agreement under this article directed to the provisions pertaining to maintenance and child support must be premised on whether the agreement is unconscionable. In re Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), affd, 195 Colo. 86, 575 P.2d 430 (1978).
Fraud and overreaching must also be shown. In order to set aside the property division provisions of a settlement agreement, in addition to establishing the unconscionability of the agreement, fraud and overreaching must be shown. In re Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), affd, 195 Colo. 86, 575 P.2d 430 (1978).
Unconscionable construed. The term unconscionable, in subsection (1), has the same meaning of fair, reasonable and just, as the identical term used in 14-10-112. In re Carney, 631 P.2d 1173 (Colo. App. 1981); In re Dixon, 683 P.2d 803, (Colo. App. 1983).
In determining whether an agreement is, or has become, unconscionable, the trial court should consider and apply the pertinent criteria set forth in the following sections: Section 14-10-112 as to the economic circumstances of the parties; 14-10-113 (1) as to the division of property; 14-10-114 (1) as to maintenance; and 14-10-115 (1) as to child support. In re Lowery, 39 Colo. App. 413, 568 P.2d 103 (1977), affd, 195 Colo. 86, 575 P.2d 430 (1978).
In determining whether the terms of the original child support decree have become unconscionable, the trial court should apply the criteria set forth in 14-10-115 (1). In re Hughes, 635 P.2d 933 (Colo. App. 1981).
In deciding whether the terms of a dissolution decree have become unconscionable, a trial court should consider and apply the criteria listed in 14-10-115 (1). In re Pring, 742 P.2d 343 (Colo. App. 1987).
A party seeking modification of the terms of a separation agreement incorporated into a dissolution decree has a heavy burden of proving that those provisions have become unconscionable under all relevant circumstances. In re Udis, 780 P.2d 499 (Colo. 1989).
Presumption of unconscionability provision deprived parties of right to objective judicial determination. Provision in divorce decree specifying conditions under which unconscionability would be presumed deprived parties of the right to have an objective judicial determination in the future, based on the circumstances then existing. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
No presumption of unconscionability in cost of living increase provision. Provision in property settlement providing for a cost of living increase in child support based on the consumer price index does not create presumption of unconscionability because provision was not imposed by the court. In re Lamm, 682 P.2d 67 (Colo. App. 1984).
Educational savings not basis for unconscionability. The fact that a parent manages to save money for her childrens education should not be a reason to punish that parents frugality by allowing such savings to serve as a basis to characterize the initial agreement as unconscionable. In re Anderson, 638 P.2d 826 (Colo. App. 1981).
Parties are free to mutually agree upon child support provision which a court could not impose upon them. In re Lamm, 682 P.2d 67 (Colo. App. 1984).
Where the trial court reserves jurisdiction for the modification of a maintenance decree but does not establish a standard other than the unconscionability standard in this section, the unconscionability standard must be applied. In re Bowman-Berry, 749 P.2d 465 (Colo. App. 1987).
The fact that a spouse who receives maintenance enjoys increased income in comparison to the amount of income earned by that spouse at the time the decree was entered does not necessarily require the conclusion that the initial award of maintenance has been rendered unconscionable. In re Udis, 780 P.2d 499 (Colo. 1989).
Wifes increased earnings do not require conclusion that maintenance amount is unconscionable nor do they reduce dollar for dollar the amount properly awarded where record supports the determination that wife met the threshold for maintenance. In re Connell, 831 P.2d 913 (Colo. App. 1992).
Where wife was earning $1,500 per month, but her standard of living was below that enjoyed during the marriage, it was within the courts discretion to determine that the continuing disparity of income between the husband and wife required continuing maintenance, although in a lower monthly amount. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
Obligor spouses reduced income as a result of a job change in anticipation of or in connection with early retirement may be considered by court in reducing maintenance, and the obligor shall not be considered voluntarily underemployed if (1) the obligors decision was made in good faith and not with the motivation to decrease or eliminate maintenance, and (2) the decision was objectively reasonable based on factors such as the obligors age, health, and the practice of the industry in which the obligor was employed. A similar analysis would apply to an obligee spouse who took an early retirement and sought to increase maintenance on that basis. In re Swing, 194 P.3d 498 (Colo. App. 2008).
C.Changed Circumstances.
It was fundamental that orders for the payment of alimony were subject to modification due to the changed circumstances of the parties. Stevens v. Stevens, 31 Colo. 188, 72 P. 1061 (1903); Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766 (1912); Jewel v. Jewel, 71 Colo. 470, 207 P. 991 (1922); Diegel v. Diegel, 73 Colo. 330, 215 P. 143 (1923); Huff v. Huff, 77 Colo. 15, 234 P. 167 (1925); Harris v. Harris, 113 Colo. 41, 154 P.2d 617 (1944); Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955); Huber v. Huber, 143 Colo. 255, 353 P.2d 379 (1960); Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674 (1960); Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).
There must be evidence of change of circumstances from time of previous decree awarding child support to justify a change in provisions. Manson v. Manson, 35 Colo. App. 144, 529 P.2d 1345 (1974); In re Soderquist, 44 Colo. App. 131, 608 P.2d 851 (1980); In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
The question is not whether, based on current financial circumstances of the parties, a court would have awarded the same amount of child support as that incorporated in the original decree. Instead, the question on a motion to modify is different: Have the terms of the original award become unfair, i.e., unconscionable. In re Anderson, 638 P.2d 826 (Colo. App. 1981); In re DaFoe, 677 P.2d 426 (Colo. App. 1983).
The burden is heavy upon him who seeks modification; changed circumstances so substantial and continuing as to make the terms unconscionable must be shown. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975); In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979); In re Anderson, 638 P.2d 826 (Colo. App. 1981); McVay v. Johnson, 727 P.2d 416 (Colo. App. 1986); In re Pring, 742 P.2d 343 (Colo. App. 1987).
This section places the burden upon the party who seeks the modification to show changed circumstances so substantial as to make the terms of the decree unconscionable. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).
In modifying a provision for maintenance, the burden is on the party seeking the modification to prove a substantial and continuing change of circumstances, and that, in considering the modification, the court should take into account the provisions of 14-10-114. Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981).
Question is not whether, based on the current financial circumstances of the parties, a court would have awarded the same amount of child support as that incorporated in the original decree, but whether the terms of the original agreement have become unfair. In re Aldrich, 945 P.2d 1370 (Colo. 1997).
Provisions as to property disposition may not be modified absent conditions justifying the reopening of a judgment, and no attempt was made to establish the existence of such conditions. In re Anderson, 711 P.2d 699 (Colo. App. 1985).
Child support may be modified only upon a showing of changed circumstances that are substantial and continuing. In re Hamilton, 857 P.2d 542 (Colo. App. 1993); In re Aldrich, 945 P.2d 1370 (Colo. 1997); In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).
A change is not substantial and continuing if application of the guidelines to the parties present situation results in a change of less than 10% in the amount of child support. In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).
It is not every change of circumstance that entitles a former husband to a reduction of his support payments. Frazier v. Frazier, 164 Colo. 245, 433 P.2d 764 (1967).
Substantial and continuing changed circumstances requirement and postsecondary education support orders. Absent application of the age of emancipation (subsection (4)) or medical insurance (subsection (1)) exceptions, the courts continuing jurisdiction to modify postsecondary education support orders is invoked only upon a showing of substantial and continuing changed circumstances by the party seeking modification. Nothing in the plain language of 14-10-115 (1.5)(c.5) or this section alters this clear, unambiguous requirement. In re Chalat, 112 P.3d 47 (Colo. 2005).
Effect of amendments to postsecondary education support scheme on the substantial and continuing changed circumstances requirement. The general assembly did not express an intent that its enactments of amendments to the postsecondary education support scheme alone automatically triggers a courts continuing jurisdiction to modify child support. The requirement for substantial and continuing changed circumstances must still be shown. In re Chalat, 112 P.3d 47 (Colo. 2005).
Trial court properly denied fathers motion for modification, which was based solely on the 1993 statutory amendment to 14-10-115 (1.5)(b)(I) and which did not allege any substantial or continuing change in the parents or the childs circumstances. In re Eaton, 894 P.2d 56 (Colo. App. 1995).
Where the divorce decree by its terms anticipated the very change in circumstances upon which the court at the modification hearing based its new order, such an increase in income could not support a later decree of the court modifying the original decree, because where the alleged change in the circumstances of the parties was one that the trial court anticipated and made allowance for when entering the original decree, such change would not be a ground for a modification of the decree. Andrews v. Andrews, 161 Colo. 529, 423 P.2d 573 (1967).
Where the most recent court order in a divorce action was based on the parties written stipulation and agreement, and the wording of the order clearly and unambiguously stated that defendant was to pay $25 per week for the support of the minor children, and there was no mention in that order of any alimony or support for plaintiff, the subsequent remarriage of plaintiff was immaterial in the disposition of the case considering reduction in payments. Ferguson v. Ferguson, 32 Colo. App. 145, 507 P.2d 1110 (1973).
When a divorce decree directed the father to pay a specified amount periodically for the joint benefit of more than one minor child, the emancipation of one of the children did not automatically affect the liability of the father for the full sum prescribed by the order, rather it became the burden of the father to make such showing as would entitle him to be relieved of all or a part of such obligation, and his failure to do so estopped him from asserting any credits for such emancipation under an arrearage judgment for the full amount of the group allowance. Ferguson v. Ferguson, 32 Colo. App. 145, 507 P.2d 1110 (1973).
If the financial ability of the husband and father improves, and the needs of the minor children increase, the jurisdiction of the court to make additional orders for the care and maintenance of the minor children may be invoked. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957); Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963).
If the financial ability of the father improves and the needs of the minor children increase, it is proper to make appropriate increases in the amount of child support. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).
A former spouse receiving maintenance should be permitted to benefit from his or her frugality and not the obligor. The former spouse should not be penalized for choosing a more austere lifestyle. In re Weibel, 965 P.2d 126 (Colo. App. 1998).
The fact that the spouse receiving maintenance is able to increase his or her income does not, in itself, make the initial award unconscionable. In re Weibel, 965 P.2d 126 (Colo. App. 1998).
The evidence did not support the husbands allegations with reference to his income or inability to pay, where he had the same employer and there was a very negligible difference in his income, and the substantial increase in his expenses was brought about by obligations incurred through entering into a new marriage, since this type of change was not, by itself, a ground for modification. Beddoes v. Beddoes, 155 Colo. 115, 393 P.2d 1 (1964).
Improved ability to pay support insufficient for modification. Evidence of the fathers ability to pay an increased amount of child support is insufficient alone to justify modification. In re Hughes, 635 P.2d 933 (Colo. App. 1981).
Nor does it provide a basis for reduction. Where a fathers income exceeds that which he was earning at the time of entry of the original decree, there was no basis for reduction of future support payments. In re Anderson, 638 P.2d 826 (Colo. App. 1981).
Childs needs more compelling than fathers. Despite the fact that the father had left the military and enrolled in college, the trial court erred when it denied the mothers motion for an increase in child support where there was a reasonable inference from the evidence that the fathers military experience qualified him for civilian employment. In re Mizer, 683 P.2d 382 (Colo. App. 1984).
Applications for a reduction in child support payments based on such a change in the mothers financial condition as her gainful employment, an increase in her earnings, her acquisition of property, or the like, have been denied in many cases, where no other circumstances warranted a reduction in the payments, because a mothers employment or income does not relieve the father of the obligation to support his children under a support order, and the mothers employment or property would not inure to the fathers benefit as a change of circumstances diminishing his obligation to support children. Beddoes v. Beddoes, 155 Colo. 115, 393 P.2d 1 (1964).
In equitably adjusting financial obligations of parties based upon changed circumstances, the property division remains fixed and requisite adjustments to achieve fairness are to be made in the maintenance provisions of a decree. In re Jones, 627 P.2d 248 (Colo. 1981).
In making a determination of changed circumstances that are substantial and continuing, the statutory child support guidelines must be considered in conjunction with the other evidence presented. In re Miller, 790 P.2d 890 (Colo. App. 1990).
The courts have not created a rigid rule precluding reduction in support or maintenance payments when both incomes have increased. In re DaFoe, 677 P.2d 426 (Colo. App. 1983).
Inflation may be considered. The effects of inflation are a proper factor to be considered in an action for child support modification. Nevertheless, there must be proper proof of the rate of inflation and its specific effects on the petitioners circumstances. In re Hughes, 635 P.2d 933 (Colo. App. 1981).
Social security payments made to a dependent child as a result of the supporting parents death must be considered by the court on a motion to terminate or modify its order for child support. In re Meek, 669 P.2d 628 (Colo. App. 1983).
Voluntarily accepted reduction due to temporarily reduced income not relevant. The fact that a custodial parent has voluntarily agreed to a reduction of child support during the time when the noncustodial parents income was temporarily reduced has no relevance to the situation, where that parents income later increases. In re Anderson, 638 P.2d 826 (Colo. App. 1981).
Where there was no showing of change in the circumstances of the parties subsequent to a prior hearing as would justify a modification of orders for the payment of alimony, a motion therefor was properly denied. Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674 (1960).
Nothing in the statute precludes the trial court from ordering a support payment that exceeds the known needs of the child. In re McCord, 910 P.2d 85 (Colo. App. 1995).
Subsection (1)(a) no longer requires a finding of unconscionability for modification of child support. In re Ehlert, 868 P.2d 1168 (Colo. App. 1994).
Even if there was no change, as such, in the circumstances, the trial court could modify a support order where it resulted solely from an agreement between the parties, and was not an order entered after contested hearing before the court, because the parties could not tie the hands of a court as concerns the issue of support for minor children. Wright v. Wright, 31 Colo. App. 381, 504 P.2d 1119 (1972), revd on other grounds, 514 P.2d 73 (1973).
Application of new child support guidelines resulting in more than a 10 percent change in support due creates a rebuttable presumption that existing support award must be modified. In re Pugliese, 761 P.2d 277 (Colo. App. 1988); In re Aldrich, 945 P.2d 1370 (Colo. 1997).
Language in subsection (1)(b) requiring courts to evaluate motions to modify child support in view of the circumstances of the parties at the time of the filing of a motion for modification does not limit a court to consider only the actual, not potential, income of the parties. Such an interpretation is undermined by the preceding text in subsection (1)(b) requiring the application of the child support guidelines to the parties circumstances at the time the motion was filed, which guidelines include the requirement that child support be calculated based upon a determination of potential income where a parent is voluntarily unemployed or underemployed. People ex rel. J.R.T., 55 P.3d 217 (Colo. App. 2002), affd on other grounds sub nom. People v. Martinez, 70 P.3d 474 (Colo. 2003).
Presumption regarding 10 percent change set forth in subsection (1)(b) is rebuttable, not conclusive. Where change in presumed support under guideline based on gross income is less than 10 percent, the parent seeking modification may nonetheless establish a substantial and continuing change in circumstances, justifying a deviation from the guideline, due to an increase in the parents personal medical expenses. In re Ford, 851 P.2d 295 (Colo. App. 1993).
If the party requesting modification demonstrates that an increase in the obligors income would result in at least a 10 percent change in the amount of child support, the childs needs are presumed. In re McCord, 910 P.2d 85 (Colo. App. 1995).
A rebuttable presumption exists that a modification of child support must be granted whenever application of the child support guidelines would result in more than a 10 percent change in the amount due. In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).
Increase in parties income constitutes a substantial change of circumstances sufficient to justify increased child support. In re Anderson, 761 P.2d 293 (Colo. App. 1988).
Unmarried cohabitation does not constitute remarriage for the purposes of a suspension, reduction, or termination of spousal maintenance. In re Dwyer, 825 P.2d 1018 (Colo. App. 1991).
Original support decree anticipated continual support for children while attending school past age 21, and, therefore, the court was without authority to change decree under auspices of changed circumstances. In re Channell, 797 P.2d 819 (Colo. App. 1990).
Court did not make findings required by 14-10-115 (14.5) to modify the allocation of federal income tax exemptions between the parties. Order allocating exemptions to the parties in alternating years, therefore, was reversed and the cause remanded to the trial court. In re Trout, 897 P.2d 838 (Colo. App. 1994).
The court is without authority to create a presumption of changed circumstances that alone would require modification of a support order. The courts order in effect creates such a presumption only as to the husbands income. While the court may order both parties to exchange relevant financial information, it may not order an automatic increase in child support based solely upon a cost of living raise that the husband might receive. In re Trout, 897 P.2d 838 (Colo. App. 1994).
Although court must consider the interests of both parties in determining whether the maintenance established in the original order has become unfair as a result of a change in circumstances, nothing precludes an obligor from making a decision that serves the obligors own interests, nor does the section require that modification be denied solely because an obligors decision disadvantages the obligee by reducing the ability to pay maintenance. In re Swing, 194 P.3d 498 (Colo. App. 2008).
Court should compare child support order currently in effect with child support guidelines to determine whether a substantial and continuing change of circumstances exists. Although the parties current child support order was the result of the parties agreement to a reduced amount of child support, the court should have compared the current child support order with the presumed child support obligation under the guidelines at the time of mothers motion to determine if mother had shown a substantial and continuing change of circumstances sufficient to maintain her motion for modification. In re M.G.C.-G., 228 P.3d 271 (Colo. App. 2010).
Court could consider husbands income from second job in determination of wifes motion to modify maintenance. While 14-10-114 references the child support guidelines, the child support guidelines require a determination of income for purposes of applying a mathematical formula. Conversely, maintenance is determined by a discretionary balancing of factors. The court did not err in failing to recalculate husbands income according to the child support guidelines and could properly consider husbands income from his second job as indicative of his ability to meet his own needs while meeting the needs of the payee-spouse. In re Nelson, 2012 COA 205, 292 P.3d 1214.
Evidence sufficient to constitute changed circumstances. Where neither party had ever followed original support order and instead had made their own agreement and operated under it for several years, it was appropriate for the trial court to modify the child support provision specified in the original decree. In re Menu, 719 P.2d 742 (Colo. App. 1986).
For evidence insufficient to constitute changed circumstances, see In re Corbin, 42 Colo. App. 200, 591 P.2d 1046 (1979); In re Soderquist, 44 Colo. App. 131, 608 P.2d 851 (1980); McVay v. Johnson, 727 P.2d 416 (Colo. App. 1986).
Subsection (5) does not require a written agreement between the parties for a change in physical care, only a mutual agreement. Court erred, therefore, in requiring a written agreement and in failing to hold a hearing when it acknowledged that there was a disputed issue of fact as to the existence of a mutual agreement. In re Paige, 2012 COA 83, 282 P.3d 506.
D.Discretion of Court.
Modification of decree allowing alimony is clearly discretionary and discretion depends upon the facts. Weydeveld v. Weydeveld, 100 Colo. 301, 67 P.2d 72 (1937); Huber v. Huber, 143 Colo. 255, 353 P.2d 379 (1960); Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963).
In exercising jurisdiction to change or modify an alimony decree courts should proceed with caution, and unless the evidence clearly shows that the original decree is no longer fair and just, it should not be changed. Harris v. Harris, 113 Colo. 41, 154 P.2d 617 (1944); Beddoes v. Beddoes, 155 Colo. 115, 393 P.2d 1 (1964).
A trial court does not have the power to retroactively modify child support arrearages which accrue prior to the filing of a motion to modify. In re Greenblatt, 789 P.2d 489 (Colo. App. 1990).
Although a trial court has broad discretion in determining the amount and duration of a maintenance award, a trial courts order will not be upheld if it produces an unfair or inequitable result. Sinn v. Sinn, 696 P.2d 333 (Colo. 1985).
No authority of court to modify permanent orders without findings supported by evidence justifying modification. In re Mattson, 694 P.2d 1285 (Colo. App. 1984).
Payment of alimony in full to date of application for reduction was not a condition precedent to the courts power to reduce. Weydeveld v. Weydeveld, 100 Colo. 301, 67 P.2d 72 (1937).
Where an action was on the motion of a defendant for modification of support and visitation orders, the trial court was under no duty to make written findings of fact and conclusions of law. Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963).
Child support provisions of separation agreement are not binding on court. In re Corbin, 42 Colo. App. 200, 591 P.2d 1046 (1979).
Maintenance and attorney fee provisions considered together to determine courts abuse of discretion. In cases where an appeal has been taken from the property division, maintenance and attorneys fee provisions of a dissolution of marriage decree as a whole, they must be considered together to determine whether the trial court abused its discretion. In re Jones, 627 P.2d 248 (Colo. 1981).
Where the husbands annual salary had not decreased since the entry of the decree, his voluntary assumption of obligations incident to his second marriage did not constitute such a change in circumstances as to require a modification of the original order, the court did not abuse its discretion in denying his motion to modify. Watson v. Watson, 29 Colo. App. 449, 485 P.2d 919 (1971).
Where financial status changed between date motion filed and date of hearing. While the trial court is authorized to consider the needs of the parties as they appear on the date the motion is filed, where the financial status of a party had changed materially between the date the motion was filed and the date of the hearing, the court must take into consideration the circumstances present on each date in determining what relief should be granted. In re Edwards, 39 Colo. App. 26, 560 P.2d 849 (1977).
Trial judge lacked authority to order husbands assets transferred and sold where husband sought modification of decree due to changed circumstances and former wife made no challenge to property disposition and did not establish conditions justifying such relief. Mackey v. Hall, 694 P.2d 1275 (Colo. 1985).
Where only 12 days elapsed between the denial of a motion for modification of a final decree fixing support payments and the filing of a new motion, no change of circumstances being shown since the denial of the former motion, it was error for trial court to modify the decree on a showing that the husband had remarried and assumed additional obligations as a result thereof. Haase v. Haase, 151 Colo. 168, 376 P.2d 698 (1962).
Burden of proof for request for modification was not circumvented by court by requiring automatic reinstatement of original spousal maintenance award at end of period of reduction. In re Ward, 740 P.2d 18 (Colo. 1987).
Trial court has discretion to determine on a case by case basis whether the best interests of the child require it to raise guideline factors on its own motion in a proceeding for modification of child support. In re Aldrich, 945 P.2d 1370 (Colo. 1997).
Court did not abuse discretion by refusing to modify maintenance amount so that it would stay at higher level which was intended to be temporary while the wife completed her education and obtained employment even though wife had not obtained suitable employment. In re Wolford, 789 P.2d 459 (Colo. App. 1989).
Court did not abuse discretion in requiring husband to reimburse wife for deficiencies created by temporarily reduced spousal maintenance payments. In re Ward, 740 P.2d 18 (Colo. 1987).
Trial court erred in modifying judgment on its own motion to allow payment of attorney fees and home sale proceeds in installments without evidence, argument, or finding of existence of conditions that justify reopening of a judgment. In re Connell, 831 P.2d 913 (Colo. App. 1992).
Trial court erred in denying mothers motion to set aside ex parte judgment in favor of father for medical and college expenses and attorney fees since subsection (1)(c) applies to child support payments, which mature under a decree without modification and become a judgment debt similar to any other judgment for money, but not to medical and college expenses, which are subject to additional elements of proof. In re Jacobs, 859 P.2d 914 (Colo. App. 1993).
Although subsection (1)(c) restricts a trial courts discretion to modify retroactively an accrued child support obligation, the restriction does not extend to the authority to set aside such a judgment on an appropriate basis. Remand to the district court is appropriate where the mothers motion to set aside the judgment contested her liability for further payments of child support, including the medical and college expenses, because of the emancipation of the children. In re Jacobs, 859 P.2d 914 (Colo. App. 1993).
Equitable estoppel doctrine did not bar relief from accrued child support arrearages. While the trial court found that father made reduced child support payments in reliance upon his agreement with mother, there were no findings that father was either unaware of the continuing obligations under the original support order or lacked the knowledge or means to seek modification of it. Further, the father did not detrimentally rely on mothers acts or representations, such as incurring additional expenses for either the child or himself or by giving up a benefit based upon the agreement. Accrued child support arrearages will be abated only under extremely limited circumstances, such as concealment of the child or uncompleted adoption proceedings. In re Beatty, 2012 COA 71, 279 P.3d 1225.
Laches is recognized as a defense to the collection of maintenance arrearages or interest or both. Trial court must consider whether wifes twenty-six-year delay in enforcing the maintenance order was unreasonable given the circumstances and whether husband suffered prejudice as a result of not paying for that period of time. The concepts of delay and prejudice are interrelated and must be considered together. In re Kann, 2017 COA 94, P.3d .
E.Jurisdiction of Court.
The former section, under which jurisdiction was retained by the court to make revisions of its orders in divorce proceedings, did not provide for a retrial procedure, such was not its purpose, as an application for modification of a divorce decree in pursuance of the statute was neither a rehearing of the original case nor a review of the equities. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).
Such rule applied to the incidental fact of paternity in a divorce proceeding. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964).
The trial courts jurisdiction in divorce actions, for the purpose of later revisions of its orders, including division of property, because of fraud, misrepresentation, or concealment, was controlled by statute rather than by C.R.C.P. 60(b). Ingels v. Ingels, 29 Colo. App. 585, 487 P.2d 812 (1971).
A court had jurisdiction to modify a decree as to permanent alimony at a term subsequent to that at which the decree was entered and before the completion of the payments therein provided, without regard to the section of the code of civil procedure dealing with relief from judgments. Stevens v. Stevens, 31 Colo. 188, 72 P. 1061 (1903); Huff v. Huff, 77 Colo. 15, 234 P. 167 (1925).
It was held a court rendering a decree of divorce retained jurisdiction to modify provisions thereof relating to alimony, division of property or a money judgment. Diegel v. Diegel, 73 Colo. 330, 215 P. 143 (1923); Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938); Mockelmann v. Mockelmann, 121 P.3d 337 (Colo. App. 2005).
The court has continuing jurisdiction for the purpose of such later revisions of its order pertaining to child support as changing circumstances may require. Pacheco v. Pacheco, 38 Colo. App. 181, 554 P.2d 720 (1976).
The holding that the trial court retained jurisdiction to hear an application for modification of the judgment for permanent alimony, where an agreement was incorporated in the decree, was overruled. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967).
Where there had been a change in circumstances before approving an application for a reduction, in matters of that kind the trial court had jurisdiction, notwithstanding the fact that prior to the modification order a writ of error had been issued by this court. Michaelson v. Michaelson, 167 Colo. 58, 445 P.2d 211 (1968).
Continuing jurisdiction as to child support. After jurisdiction of the parties in a divorce action attaches, the court retains jurisdiction over matters concerning the support of the minor children, and may, without notice to husband, enter judgment for arrearages in child support payments. Sauls v. Sauls, 40 Colo. App. 275, 577 P.2d 771 (1977); In re Warner, 719 P.2d 363 (Colo. App. 1986).
Formerly, terms of agreement not subject to modification absent courts reservation of such powers. Where a separation agreement was adopted and incorporated into the decree of divorce, and the agreement did not reserve to the court jurisdiction to modify the terms of the alimony provision, nor did the court in its order adopting and incorporating the agreement into the divorce decree specifically reserve the right to modify the terms thereof, the court cannot later modify such an agreement. Burleson v. District Court, 196 Colo. 445, 586 P.2d 665 (1978).
Specific agreement that court would retain jurisdiction controls. Where the parties specifically agreed that the trial court would retain jurisdiction to reopen the proceedings if any undisclosed assets were subsequently discovered, that agreement is binding, notwithstanding the provisions of C.R.C.P. 60(b) and this section. In re Hiner, 669 P.2d 135 (Colo. App. 1983), affd in part and revd in part on other grounds, 710 P.2d 488 (Colo. 1985).
Court has the power to reserve the right to modify its judgment based upon the occurrence of an expressly anticipated change of circumstances and is not required to find that the statutory threshold as contained in this section has been met. In re Mirise, 673 P.2d 803 (Colo. App. 1983).
The court retains jurisdiction to modify an award of limited maintenance even after the term for maintenance has passed where an actual need for continued support may not have been evident during the term of limited maintenance and the parties have provided for further court orders. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
The court should not be deprived of the authority to modify an award of support based solely on the desire of promoting the goals of finality and permanency of a dissolution decree, even though the term for limited maintenance has expired. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
The court has jurisdiction to consider a motion to modify maintenance which is filed after the original maintenance obligation has ended where maintenance was awarded as part of a decree of dissolution and the parties have not by agreement expressly precluded the courts jurisdiction. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
A trial court may expressly reserve jurisdiction to review, adjust, or extend a maintenance award if: (1) An important contingency exists, the outcome of which may significantly affect the amount or duration of the maintenance award; (2) the contingency is based upon an ascertainable, future event or events; (3) the contingency can be resolved within a reasonable and specific period time. In re Caufman, 829 P.2d 501 (Colo. App. 1992).
If a trial court intends to reserve jurisdiction over maintenance pursuant to this section it should: (1) State its intent to do so on the record; (2) briefly outline its reasons for doing so, stating what the ascertainable future event upon which the reservation of maintenance jurisdiction is based; and (3) set forth a reasonably specific future time within which maintenance may be reconsidered under this section. In re Caufman, 829 P.2d 501 (Colo. App. 1992).
Only where the parties have expressly agreed to preclude modification under 14-10-112 (6), should maintenance be incapable of modification. Sinn v. Sinn, 696 P.2d 333 (Colo. 1985); In re Lee, 781 P.2d 102 (Colo. App. 1989); Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).
By accepting the parties separation agreement, incorporating it into the decree of dissolution, and granting the decree of dissolution that specified that the court retained jurisdiction as provided by law, the court retained jurisdiction even though the contractual maintenance agreement specified that at the end of a three-year period, maintenance would be waived forever. In re Burke, 39 P.3d 1226 (Colo. App. 2001).
Any effort to limit or preclude the authority of a district court to modify the maintenance provision of a separation agreement must be articulated in language that is specific and unequivocal; if the parties are silent or if the parties reserve such power to the court, a district court may modify the maintenance provisions of a separation agreement incorporated into a decree. In re Burke, 39 P.3d 1226 (Colo. App. 2001).
District court did not have the power to void a separation agreement that was incorporated in an Illinois judgment. Upon remand, if the conditions for modification of child support are shown, the district court may modify the Illinois decree but it must recognize the Illinois judgment as the standard against which a change sought under this section must be measured. Rae v. Rubin, 719 P.2d 743 (Colo. App. 1986).
This section authorizes the modification of those awards traditionally labeled as maintenance in gross, even though the decree does not expressly reserve the power to modify the order. Sinn v. Sinn, 696 P.2d 333 (Colo. 1985).
The characterization of periodic payments as maintenance or property division should be based on the purpose of the payments as determined by the totality of the circumstances. Sinn v. Sinn, 696 P.2d 333 (Colo. 1985).
No authority to award equitable reimbursement of past expenses. The court does not have the authority in a dissolution of marriage action to award to the wife an equitable reimbursement of expenses incurred and paid by wife for the past support of the children. In re Serfoss, 642 P.2d 44 (Colo. App. 1981).
Separation agreement provision that was incorporated into the dissolution of marriage decree requiring husband to pay part of his future social security benefits to wife is void. State courts lack subject matter jurisdiction to divide parties social security benefits in a property distribution. In re Anderson, 252 P.3d 490 (Colo. App. 2010).
It was formerly well-established in this state that a property settlement agreement which was approved and incorporated in a divorce decree could not subsequently be modified, in the absence of fraud or overreaching. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967); In re Corley, 38 Colo. App. 319, 558 P.2d 450 (1976).
Where the agreement of the parties specifically stated that no modification of any term in the agreement would be valid unless in writing and signed by both parties and there was no reservation to the court of the power to modify the maintenance provisions, nor did the court, as a condition of approval of the agreement, reserve the power to modify, the maintenance aspect of the property settlement provision in the decree could only be modified upon proof of fraud or overreaching, or by the subsequent agreement of the parties. In re Corley, 38 Colo. App. 319, 558 P.2d 450 (1976).
A provision in an agreement which obligated the husband to make fixed monthly payments to the wife, where the agreement was approved by the court and incorporated in the decree of divorce, was not subject to subsequent modification. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967).
The parties could, in an agreement, reserve to the court the power to modify the alimony provision, and the court, as a condition to approval of the agreement, could reserve such power to itself, and it could also be modified by the subsequent agreement of the parties. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967).
The law is well settled in Colorado that a decree determining property rights in a divorce matter is final and cannot be subsequently modified by reason of changed circumstances. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).
Formerly, where parties to a divorce action enter into an agreement settling their property rights, which agreement was incorporated in the final decree, the court was thereafter without jurisdiction, no fraud in procuring the settlement appearing, to modify the terms of the decree concerning such property rights in the absence of consent of the parties. Hall v. Hall, 105 Colo. 227, 97 P.2d 415 (1939).
Although a former section gave the courts jurisdiction to enforce separate maintenance agreements, it was not to be construed to mean that parties to such agreements could not modify them by mutual consent. Gavette v. Gavette, 104 Colo. 71, 88 P.2d 964 (1939).
Trial courts modification of property division, to pay home sale proceeds and attorney fees in installments, limited wifes collection remedies and was therefore in excess of its jurisdiction. In re Greenblatt, 789 P.2d 489 (Colo. App. 1990); In re Connell, 831 P.2d 913 (Colo. App. 1992).
Where child was disabled and unable to support herself, an agreement between the parties that child support would terminate when the child reached 21 did not divest the court of jurisdiction to order continuing child support. In re Salas, 868 P.2d 1180 (Colo. App. 1994).
F.Effective Date of Modification.
Formerly a modifying order or decree relates only to future support payments and can be effective only from the time of its entry. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961); Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963).
The general rule that an order reducing the amount of support money operates only in futuro was not always applicable. Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455 (1963).
Docketing delays do not excuse or reduce a child support obligation. Without specific findings of hardship or injustice under subsection (1)(d), modification must be made retroactive. However, amounts awarded retroactively are not arrearages requiring payment of interest under 14-14-106. In re Armit, 878 P.2d 101 (Colo. App. 1994).
Generally the modification of support orders must be based on the needs of the parties at the time of the hearing thereon, rather than on what such conditions may have been in the past or may be in the future. Huber v. Huber, 143 Colo. 255, 353 P.2d 379 (1960).
Court may now modify support payments back to date of filing of motion, rather than only from the date of the hearing on the motion as was the case under the earlier statute. In re Walsh, 44 Colo. App. 502, 614 P.2d 913 (1980).
But the trial court has discretion in determining whether to back date a reduction order to the time motion was filed, and trial courts determination will stand absent an abuse of discretion. In re DaFoe, 677 P.2d 426 (Colo. App. 1983).
The amendment to subsection (5) that was effective January 1, 2017, was intended by its plain language to operate on motions filed after its effective date, even if the change in physical care predated the amendment. Subsection (5) is remedial in nature and its limitation provision is simply a limitation on the remedy: Regardless of when the change in custody occurred, relief is limited to the five years preceding the filing of the motion. The application of a limitation on a remedy to an existing claim for relief does not violate the prohibition against retroactive legislation. In re Weekes, 2020 COA 16, 459 P.3d 1216.
Under subsection (5), modification of support must date from the change in physical custody. Mother was not liable for child support arrearages based on a stipulation between the parties under which she agreed to pay child support, because she regained physical custody of the child and the child continued to live with her for the entire period for which support was claimed. In re Foley, 879 P.2d 452 (Colo. App. 1994).
Provisions of subsection (1) and subsection (5) relating to retroactivity of modification date are irreconcilable. The subsection enacted latest, which states that modification should be effective as of the date of the filing of the motion for modification of child support, read together with the consistent provisions of the statutory section, prevails. The conflicting subsection relating to retroactive modification back to the date of change of physical custody is repealed by implication. In re Pickering, 967 P.2d 164 (Colo. App. 1997) (decided prior to 1998 amendments to subsection (1) and (5)).
Subsection (5) provides that when children change their primary residence, the provisions for obligors child support under the existing child support order will be modified as of the date when the physical care was changed. It does not provide that either parents obligation terminates for a time; instead, the existing order is to be modified as of the date the children switch residences. In re Emerson, 77 P.3d 923 (Colo. App. 2003).
The general assembly legislatively overruled In re White, 240 P.3d 534 (Colo. App. 2010), when it amended subsection (5) in 2013. It intended to change the statute in favor of the statutory interpretation of In re Emerson. In re Garrett, 2018 COA 154, 444 P.3d 812.
Subsection (5) allows a court to retroactively enter a child support order against either parent, as of the date of a change in physical care of a child, regardless of the parents status as an obligor or obligee under the existing child support order. In re Garrett, 2018 COA 154, 444 P.3d 812.
The inability to calculate the amount of support due does not change the fact that mother became the obligor as of the date of the change in residence. In re Emerson, 77 P.3d 923 (Colo. App. 2003).
Subsection (5) relates only to provisions for child support for the obligor under the existing order. Where parents agreed that child could live with father who is the obligor under the existing child support order, child support may be ordered for mother effective the date of filing of a motion, not retroactive to the date when physical care was changed. In re White, 240 P.3d 534 (Colo. App. 2010) holding contrary to In re Emerson, annotated above. But see In re Garrett, 2018 COA 154, 444 P.3d 812, annotated above.
Mother does not become obligor under existing child support order by virtue of a mutually agreed upon change in physical care. The statute encourages parties in such cases to modify or update the child support order. Mothers obligation commences at the time of filing of the motion. In re White, 240 P.3d 534 (Colo. App. 2010) holding contrary to In re Emerson, annotated above. But see In re Garrett, 2018 COA 154, 444 P.3d 812, annotated above.
Subsection (5) provides a limited exception to the general rule that child support may only be modified retroactive to the date of filing of a motion and was designed to protect the obligor in an existing order who has accepted the physical care of the child. In re White, 240 P.3d 534 (Colo. App. 2010) holding contrary to In re Emerson, annotated above. But see In re Garrett, 2018 COA 154, 444 P.3d 812, annotated below.
After a voluntary change in parenting time, retroactive child support may be awarded to the obligor of the previous order beginning on the date when the physical care was changed. Despite the persistent ambiguity of the statute after it was amended in 2013, the general assembly appears to have attempted to overrule In re White, 240 P.3d 534, and affirm In re Emerson, 77 P.3d 923 (Colo. App. 2003), both annotated above. In re Garrett, 2018 COA 154, 444 P.3d 812.
G.Scope of Review.
Application of the provisions of this section by the court for the modification of a prior child support order entered under the Uniform Parentage Act was error as a matter of law. Ashcraft v. Allis, 747 P.2d 1274 (Colo. App. 1987).
One who has accepted benefits of judgment may not seek reversal of that judgment on appeal. In re Jones, 627 P.2d 248 (Colo. 1981).
Unless it clearly appeared that the trial court, in resolving the problems arising under the evidence appearing in the record, acted unreasonably or arbitrarily in making the orders and awards of which complaint is made, it was not proper for the supreme court to modify or set them aside. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938); Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).
There was no difficulty in laying down the rule that governed, but there was difficulty in applying it, because what was, and what was not, reasonable and where a reasonable discretion ended and arbitrary action began was not susceptible of mathematical demonstration, and the application of the rule necessarily introduced the factor of individual judgment, which, as between different persons in the same case, was a variable quantity. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).
A decree of divorce which had been modified by the supreme court on the determination of an appeal in respect to the amount and payment of alimony could have been further modified on petition for rehearing as to provide for the acceptance of the husbands tender of a deed of real estate in lieu of all pecuniary allowances of alimony. Luthe v. Luthe, 12 Colo. 421, 21 P. 467 (1889).
Where a mother through her attorney in open court, disclaimed any interest in upholding a judgment for cumulated support payments and recommended that the judgment be set aside and lesser sum substituted in justice to both parties, she could not change her position in the supreme court because dissatisfied with amount of reduction by the trial court. Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455 (1963).
Referees findings concerning whether a sufficient change of circumstances has occurred to justify modification of child support order is binding upon the court, unless such findings are without evidentiary support. McVay v. Johnson, 727 P.2d 416 (Colo. App. 1986).
Judgment which took into consideration the proceeds of moneys embezzled by the husband set aside. In re Allen, 724 P.2d 651 (Colo. 1986).
III.TERMINATION OF MAINTENANCE AND CHILD SUPPORT.
Annotators note. Since 14-10-122 (2) and 14-10-122 (3) are similar to repealed 46-1-5 (5), C.R.S. 1963, and 46-1-5, CRS 53, and because repealed 46-2-5, C.R.S. 1963, and 46-2-5, CRS 53 have some relevance, relevant cases decided under those provisions have been included in the annotations to this section.
The writing referred to in subsection (2) must expressly or by clear implication provide that maintenance payments will continue after the death of the obligor. In re Williams, 2017 COA 120M, 410 P.3d 1271.
A general provision at the end of a premarital or separation agreement providing that the agreements are binding on and inure to the benefit of the parties heirs, assigns, and personal representatives does not bind the estate to continue the maintenance payments to the obligee without a clear indication in the maintenance provision of the agreement that such payments are intended to continue after obligors death. In re Williams, 2017 COA 120M, 410 P.3d 1271.
Without a clear expression of intent to continue a payment obligation beyond husbands lifetime, the period that husband was obligated to pay, during which the amount of the payments was nonmodifiable, ended with his death. In re Williams, 2017 COA 120M, 410 P.3d 1271.
Section inapplicable where agreement provides that only wifes death would absolve husbands liability. Although the language of a separation agreement does not explicitly provide for the continuation or termination of maintenance in the event of remarriage where it indicates that it was the contemplation of the parties that only the wifes death would absolve the husband of liability for payment of maintenance, the provisions of this section do not apply. In re Hahn, 628 P.2d 175 (Colo. App. 1981).
The presence of a general nonmodification clause in the separation agreement is sufficient to overcome the statutory presumption that maintenance terminates upon the recipients remarriage. While express language concerning termination is preferable, the absence of that language is not fatal if the intent is evident from the agreement or decree as a whole. In re Parsons, 30 P.3d 868 (Colo. App. 2001).
The public policy which provides an obligation for one spouse to support the other spouse when there is a need and an ability to pay applies equally to reinstate a support obligation following annulment of a subsequent marriage where the equities dictate. In re Cargill & Rollins, 843 P.2d 1335 (Colo. 1993).
Ordinarily alimony ceased upon the death of the husband, or the wife. Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955); Doll v. Doll, 140 Colo. 546, 345 P.2d 723 (1959); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964); In re Piper, 820 P.2d 1198 (Colo. App. 1991).
Child support obligation of noncustodial parent continues after death of custodial parent. When a noncustodial parents child support obligation is incorporated into a dissolution decree, and the custodial parent dies and the child is not in the physical custody of the noncustodial parent, the child support obligation of the noncustodial parent continues beyond the death of the custodial parent in accordance with the terms of the dissolution decree. Abrams v. Connolly, 781 P.2d 651 (Colo. 1989).
Legal obligation expanded. In effect, by this section the general assembly has expanded the legal obligation of the parent of a minor child entitled to receive support pursuant to a dissolution of marriage decree. In re Icke, 189 Colo. 319, 540 P.2d 1076 (1975).
Parent was not divested of child support obligation based on payments that accrued prior to a final adoption decree. In addition, father was denied equitable relief from child support obligation where record did not reflect evidence of representations upon which the father relied or that an evidentiary hearing was requested. In re Murray, 790 P.2d 868 (Colo. App. 1989).
Unless otherwise provided, the obligation to support minor children survives the death of the parent. In re Icke, 189 Colo. 319, 540 P.2d 1076 (1975).
There was no authority under which a husband could be compelled to carry insurance on his life to the end that a divorced wife could from that source continue to receive alimony after the death of the husband, as this obligation to pay alimony ends with death. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969).
Carrying life insurance as means of continuing alimony permitted. Subsection (2) changes the rule under prior law that an order requiring a husband to carry life insurance as a means of continuing alimony after his death was not permitted. In re Koktavy, 44 Colo. App. 305, 612 P.2d 1161 (1980).
Court may order spouse to obtain life insurance to secure future maintenance payments even though the obligation to pay maintenance terminated upon the death of the spouse. In re Graff, 902 P.2d 402 (Colo. App. 1994).
Under subsection (5) of former 46-1-5, C.R.S. 1963, where there is no written agreement or stipulation to the contrary, the right to alimony automatically terminated by operation of law upon remarriage of the wife without the necessity of the husbands affirmative action for termination by court order. Spratlen v. Spratlen, 30 Colo. App. 91, 491 P.2d 608 (1971).
Where an agreement to pay alimony was indefinite in time, and merely provided that the reduction of husbands obligations at his fathers death would be taken into consideration in fixing the amount of periodic alimony payments due thereafter, since there was no written agreement to the contrary, the trial court should have ruled that the husbands obligation to pay alimony ceased at the wifes remarriage. Spratlen v. Spratlen, 30 Colo. App. 91, 491 P.2d 608 (1971).
The term remarriage as used in this section means the status of remarriage, including both common law and ceremonial marriage. In re Cargill & Rollins, 843 P.2d 1335 (Colo. 1993).
Remarriage does not terminate property right adjustment. Court order constituting an adjustment of property rights between a former husband and wife did not terminate upon remarriage of wife. Greer v. Greer, 32 Colo. App. 196, 510 P.2d 905 (1973).
An annulment of a marriage does not automatically reinstate a maintenance obligation from a previous marriage as a matter of law, but the obligation may be reinstated depending on the facts and equities of the situation. In re Cargill & Rollins, 843 P.2d 1335 (Colo. 1993).
Remarriage may warrant reduction in child support payments to eliminate that portion of the payment actually intended as maintenance. Gebhardt v. Gebhardt, 198 Colo. 28, 595 P.2d 1048 (1979).
Duty to support dependent adult child. Where an adult child, subject to proof of her alleged incapacity, is still dependent on her parents, then the child is not emancipated under this article and the duty of support continues. In re Koltay, 646 P.2d 405 (Colo. App. 1982), affd, 667 P.2d 1374 (Colo. 1983).
Provision for post-emancipation support may be made by written agreement of the parties or, in proper circumstances, may be included in a decree entered before the childs 21st birthday and guided by consideration of the factors listed in 14-10-115. In re Huff, 834 P.2d 244 (Colo. 1992).
What constitutes emancipation is a question of law. In re Robinson, 629 P.2d 1069 (Colo. 1981); Baker v. Baker, 667 P.2d 767 (Colo. App. 1983).
Establishment of emancipation. When, by express or implied agreement between a child and a parent, a child who is capable of providing for his own care and support undertakes to leave his parents home, earn his own living and do as he wishes with his earnings, emancipation occurs. In re Robinson, 629 P.2d 1069 (Colo. 1981).
Whether emancipation has been established must be determined in light of all the relevant facts and circumstances of the case. In re Robinson, 629 P.2d 1069 (Colo. 1981).
Emancipation ordinarily occurs upon the attainment of majority. Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983).
Burden of proving emancipation is on the one asserting it. In re Robinson, 629 P.2d 1069 (Colo. 1981).
Minor unemancipated childs earnings from summer employment do not affect the noncustodial parents obligation to provide support. In re Anderson, 638 P.2d 826 (Colo. App. 1981).
Emancipation does not occur where child incapable of self-support. If a child is physically or mentally incapable of self-support when he attains the age of majority, emancipation does not occur, and the duty of parental support continues for the duration of the childs disability. Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983).
Emancipation automatic upon childs marriage. Emancipation occurs automatically upon the valid marriage of child, and the validity of a marriage is tested under the laws of the jurisdiction where the marriage took place. In re Fetters, 41 Colo. App. 281, 584 P.2d 104 (1978).
Child, once emancipated by marriage, could become unemancipated by the subsequent annulment of that marriage. In re Fetters, 41 Colo. App. 281, 584 P.2d 104 (1978).
A minor may be emancipated for some purposes but not for others. In re Robinson, 629 P.2d 1069 (Colo. 1981).
For evidence insufficient to support finding that child emancipated, see In re Clay, 670 P.2d 31 (Colo. App. 1983).
For evidence insufficient to establish temporary emancipation during summer vacation, see In re Robinson, 629 P.2d 1069 (Colo. 1981).
Support payments for a child who is emancipated by marriage do not automatically terminate unless there is a specific amount separately stated for the support of the particular child emancipated. Ferguson v. Ferguson, 32 Colo. App. 145, 507 P.2d 1110 (1973).
Change in the age of emancipation and duty of support in 14-10-115 did not automatically modify a parents existing obligation of support and plain language of subsection (4) makes clear that the changes in the age of emancipation will affect a support obligation only if a motion to modify is filed and only with respect to those support payments coming due after such filing. In re Dion, 970 P.2d 968 (Colo. App. 1997).
This section plainly establishes substantial and continuing changed circumstances as the prerequisite to modification of all postsecondary education support orders. While the parties can agree to postsecondary education support, the terms of their agreement do not bind the court, and the parties cannot preclude or limit subsequent court modification of terms concerning child support. In re Ludwig, 122 P.3d 1056 (Colo. App. 2005).
A defendant who sought reduction in support payments had burden of proving that the payments should be reduced by any particular amount. Ferguson v. Ferguson, 32 Colo. App. 145, 507 P.2d 1110 (1973).
Good faith retirement does not create a reason that automatically terminates a payors duty to pay maintenance. Subsection (2)(b) creates a rebuttable presumption that a payor who retires after reaching full retirement age has retired in good faith. This rebuttable presumption is not conclusive on the question of whether the court should terminate the payors maintenance obligation. Because the presumption is rebuttable, the spouse who is receiving maintenance must have the opportunity to rebut the presumption. Once the payor satisfies the rebuttable presumption created by subsection (2)(b), the presumption shifts the burden of going forward to the recipient to show that the payors decision to retire was not made in good faith. If the recipient does not meet this burden, then the court will presume, as a matter of law, that the payors decision to retire was made in good faith. In re Thorstad, 2019 COA 13, 434 P.3d 165.
If a payor asks a court to modify or to terminate a maintenance obligation because he or she intends to retire, then the court should follow a general rule. First, applying subsections (2)(b) and (2)(c), it should decide whether the payors decision to retire was made in good faith. Second, it should then incorporate its findings concerning the payors decision to retire as one of the factors to consider in deciding whether, under subsection (1)(a), circumstances have changed in such a substantial and continuing way as to make the original order unfair. In re Thorstad, 2019 COA 13, 434 P.3d 165.
Formerly, the necessity for a separate maintenance could have terminated at any time by reconciliation of the parties, or by the death of one of them. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).
The general rule was that reconciliation did not automatically terminate property settlement agreements, and the courts in such cases looked to the intent of the parties to determine if reconciliation was meant to revoke the property settlement agreement, and the question of whether or not reconciliation affects a property settlement agreement was a question of fact to be determined by the evidence. Larson v. Goodman, 28 Colo. App. 418, 475 P.2d 712 (1970).
It is error as a matter of law to fail to weigh the evidence giving due consideration and thought to all of the statutory factors of 14-10-115 (1) where the noncustodial parent has ample resources with which to contribute to his childrens education, and their ability to acquire and their need for an education are established by the evidence. In re Pring, 742 P.2d 343 (Colo. App. 1987).
Hence, the trial court erred in requiring these children to exhaust their own assets for educational purposes before requiring either parent to contribute to their education. In re Pring, 742 P.2d 343 (Colo. App. 1987).
Absent a finding that a motion for custody evaluation was made for purpose of delay, the court must order an evaluation upon request of one of the parties. Kuyatt v. District Court, 817 P.2d 116 (Colo. 1991).
Where the agreement fails to expressly provide for the termination of child support or educational costs, the court must interpret and enforce the implied obligation to render it lawful. In re Meisner, 807 P.2d 1205 (Colo. App. 1990); In re Wisdom, 833 P.2d 884 (Colo. App. 1992).
When court interprets an implied obligation, it must consider all of the provisions of the agreement as well as the circumstances at the time it was made, consonant with its dominant purpose. In re Wisdom, 833 P.2d 884 (Colo. App. 1992).