Uniform Dissolution Of Marriage Act — C.R.S. 14-10

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If any man who has read and understood the following then considers marriage his sanity and reason should be placed in question as a matter of law.

 

Index

Note that this statute has been revised in virtually every legislative session since it was first passed over 40 years ago. Please check the latest version rather than relying on this one.

Current law

14-10-101 - Short title.

14-10-102 - Purposes - rules of construction.

14-10-103 - Definition and interpretation of terms.

14-10-104 - Uniformity of application and construction.

14-10-104.5 - Legislative declaration.

14-10-105 - Application of Colorado rules of civil procedure.

14-10-106 - Dissolution of marriage - legal separation.

14-10-107 - Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.

14-10-107.5 - Entry of appearance to establish support.

14-10-107.7 - Required notice of involvement with department of human services.

14-10-107.8 - Required notice of prior restraining orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.

14-10-108 - Temporary order or temporary injunction.

14-10-109 - Enforcement of restraining orders.

14-10-110 - Irretrievable breakdown.

14-10-111 - Declaration of invalidity.

14-10-112 - Separation agreement.

14-10-113 - Disposition of property.

14-10-114 - Maintenance.

14-10-115 - Child support - guidelines - schedule of basic child support obligations - repeal.

14-10-116 - Appointments in domestic relations cases - representation of child - special advocates.

14-10-117 - Payment of maintenance or child support.

14-10-118 - Enforcement of orders.

14-10-119 - Attorney's fees.

14-10-120 - Decree.

14-10-120.3 - Dissolution of marriage upon affidavit - requirements.

14-10-120.5 - Petition for dissolution of marriage - fee - assessment - displaced homemakers fund.

14-10-121 - Independence of provisions of decree or temporary order.

14-10-122 - Modification and termination of provisions for maintenance, support, and property disposition - automatic lien.

14-10-123 - Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction.

14-10-123.3 - Requests for parental responsibility for a child by grandparents.

14-10-123.4 - Rights of children in matters relating to parental responsibilities.

14-10-123.5 Joint custody (Repealed 1999)

14-10-123.6 - Required notice of prior restraining orders to prevent domestic abuse - proceedings concerning parental responsibilities relating to a child.

14-10-123.7 - Parental education - legislative declaration.

14-10-123.8 - Access to records.

14-10-124 - Best interests of child.

14-10-125 - Temporary orders.

14-10-126 - Interviews.

14-10-127 - Evaluation and reports.

14-10-128 - Hearings.

14-10-128.5 - Appointment of arbitrator - de novo review of award.

14-10-129 - Modification of parenting time.

14-10-129.5 - Disputes concerning parenting time.

14-10-130 - Judicial supervision.

14-10-131 - Modification of custody or decision-making responsibility.

14-10-131.5 - Joint custody modification - termination (Repealed, 1999)

14-10-131.7 - Designation of custody for the purpose of other state and federal statutes.

14-10-131.8 - Construction of 1999 revisions.

14-10-132 - Affidavit practice.

14-10-133 - Effective date - applicability.

Commentary

Couples with a contractual arrangement under a marriage license

Biological parents of minor children

Suggested revisions

14-10-106 - Dissolution of marriage - legal separation.

14-10-107 - Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.

14-10-107.5 - Entry of appearance to establish support.

14-10-107.8 - Required notice of prior restraining orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.

14-10-108 - Temporary order or temporary injunction.

14-10-109 - Enforcement of restraining orders.

14-10-112 - Separation agreement.

14-10-114 - Maintenance.

14-10-116 - Appointments in domestic relations cases - representation of child - special advocates.

14-10-119 - Attorney's fees.

14-10-120 - Decree.

14-10-120.3 - Dissolution of marriage upon affidavit - requirements.

14-10-123 - Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction.

14-10-124 - Best interests of child.

14-10-125 - Temporary orders.

14-10-126 - Interviews.

14-10-127 - Evaluation and reports.

14-10-129.5 - Disputes concerning parenting time.

14-10-130 - Judicial supervision.

14-10-131 - Modification of custody or decision-making responsibility.


 

Current law (January, 2003)

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Note that this statute has been revised in virtually every legislative session since it was first passed over 40 years ago. Please check the latest version rather than relying on this one.

14-10-101 - Short title.

This article shall be known and may be cited as the "Uniform Dissolution of Marriage Act".

 

Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-1.

Law reviews. For note, "The Extraterritorial Validity of Colorado Divorces", see 7 Rocky Mt. L. Rev. 271 (1935). For article, "Divorce — Stalemate", see 16 Dicta 107 (1939). For article, "What Divorce Statutes Are Now in Effect in Colorado?", see 21 Dicta 68 (1944). For article, "Ten Years of Domestic Relations in Colorado — 1940-1950", see 27 Dicta 399 (1950). For article, "Workmen's Compensation, Attorneys and Family Law", see 31 Dicta 1 (1954). For article, "A Proposal for Some Modest Changes in Divorce and Annulment Laws", see 26 Rocky Mt. L. Rev. 221 (1954). For article, "Colorado's New Divorce Law", see 35 Dicta 219 (1958). For note, "The New Colorado Divorce Statute", see 31 Rocky Mt. L. Rev. 207 (1959). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Divorce Policy and Divorce Reform", see 42 U. Colo. L. Rev. 403 (1971). For article, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Mediation of Contested Child Custody Disputes", see 11 Colo. Law. 336 (1982). For article, "Colorado: Now a Community Property State?", see 25 Colo. Law. 55 (May 1996). For article, "Blending Spousal Tort Claims and Colorado Divorce Actions", see 25 Colo. Law. 57 (May 1996).

Act applicable regardless of date marriage began . Regardless of the date the marriage began, if the dissolution of marriage occurs after the effective date of this article, the parties are subject to all provisions of the uniform act. In re Lester, 647 P.2d 688 (Colo. App. 1982).


 

14-10-102 - Purposes - rules of construction.

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(1) This article shall be liberally construed and applied to promote its underlying purposes.

(2) Its underlying purposes are:

(a) To promote the amicable settlement of disputes that have arisen between parties to a marriage;

(b) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage; and

(c) To make the law of legal dissolution of marriage more effective for dealing with the realities of matrimonial experience by making an irretrievable breakdown of the marriage relationship the sole basis for its dissolution.

 

Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-2.

Every state as a sovereign has rightful and legitimate concern in marital status of those persons who are domiciled within the state. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).

Marriage is favored over less formalized relationships. The state of Colorado has an interest in marriage, and marriage is favored over less formalized relationships which exist without the benefit of marriage. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).

Temporary support orders further purpose of article to mitigate potential harm to spouses and their children caused by the process of legal dissolution of marriage by maintaining status quo pending final disposition of dissolution proceeding. In re Price, 727 P.2d 1073 (Colo. 1986).

Joinder of interspousal tort claims with marriage dissolution proceedings precluded. Marriage dissolution action cannot be joined with an interspousal claim sounding in tort since this section encourages the amicable settlement of disputes between parties to a marriage. Simmons v. Simmons, 773 P.2d 602 (Colo. App. 1988).

This act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).


 

14-10-103 - Definition and interpretation of terms.

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(1) As used in this article, unless the context otherwise requires, the term "decree" includes the term "judgment"; and, for the purposes of the tax laws of the state of Colorado or of any other jurisdiction, the term "maintenance" includes the term "alimony".

(2) Whenever any law of this state refers to or mentions divorce, annulment, or separate maintenance, said law shall be interpreted as if the words dissolution of marriage, declaration of invalidity of marriage, and legal separation, respectively, were substituted therefor.

(3) On and after July 1, 1993, the term "visitation" has been changed to "parenting time". It is not the intent of the general assembly to modify or change the meaning of the term "visitation" nor to alter the legal rights of a parent with respect to the child as a result of changing the term "visitation" to "parenting time".

(4) On and after February 1, 1999, the term "custody" and related terms such as "custodial" and "custodian" have been changed to "parental responsibilities". It is not the intent of the general assembly to modify or change the meaning of the term "custody" nor to alter the legal rights of any custodial parent with respect to the child as a result of changing the term "custody" to "parental responsibilities".

 

Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-4. L. 72: p. 595, § 73. L. 73: p. 552, § 1. L. 93: (3) added, p. 576, § 5, effective July 1. L. 98: (3) amended and (4) added, p. 1376, § 1, effective February 1, 1999.

Cross references: For the legislative declaration contained in the 1993 act enacting subsection (3), see section 1 of chapter 165, Session Laws of Colorado 1993.


 

14-10-104 - Uniformity of application and construction.

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(1) This article shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of this article among those states which enact it.

(2) The term "irretrievable breakdown" shall be construed as being similar to other terms having a like import in the law of other jurisdictions adopting this or a similar law.

 

Source: L. 71: R&RE, p. 520, § 1. C.R.S. 1963: § 46-1-3.


 

14-10-104.5 - Legislative declaration.

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The general assembly recognizes that it is in the best interests of the parties to a marriage in which a dissolution has been granted and in which there are children of the marriage for the parties to be able to resolve disputes that arise subsequent to the dissolution in an amicable and fair manner. The general assembly further recognizes that, in most cases, it is in the best interests of the children of the marriage to have a relationship with both parents and that, in most cases, it is the parents' right to have a relationship with their children. The general assembly emphasizes that one of the underlying purposes of this article is to mitigate the potential harm to the spouses and their children and the relationships between the parents and their children caused by the process of legal dissolution of marriage. The general assembly recognizes that when a marriage in which children are involved is dissolved both parties either agree to or are subject to orders which contain certain obligations and commitments. The general assembly declares that the honoring and enforcing of those obligations and commitments made by both parties is necessary to maintaining a relationship that is in the best interest of the children of the marriage. In recognition thereof the general assembly hereby declares that both parties should honor and fulfill all of the obligations and commitments made between the parties and ordered by the court.

 

Source: L. 88: Entire section added, p. 633, § 8, effective July 1. L. 98: Entire section amended, p. 1376, § 2, effective February 1, 1999.

Intent of act requires enforcement of child support agreement even though it does not specify a dollar amount. To allow otherwise would be to allow father to unilaterally terminate child support obligation without first obtaining an order of modification. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).


 

14-10-105 - Application of Colorado rules of civil procedure.

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(1) The Colorado rules of civil procedure apply to all proceedings under this article, except as otherwise specifically provided in this article.

(2) A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled "In re the Marriage of........ and..........". A proceeding for the allocation of parental responsibilities or a support proceeding shall be entitled "In re the (Parental responsibilities concerning) (Support of)..........".

(3) The initial pleading in all proceedings under this article shall be denominated a petition. A responsive pleading shall be denominated a response. Other pleadings and all pleadings in other matters under this article shall be denominated as provided in the Colorado rules of civil procedure.

 

Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-5. L. 98: (2) amended, p. 1395, § 33, effective February 1, 1999.

Annotator's note. Since § 14-10-105 is similar to repealed § 46-1-2, C.R.S. 1963, and CSA, C. 56, § 3, relevant cases construing those provisions have been included in the annotations to this section.

The rules of civil procedure, where the divorce statutes are silent as to any method of procedure, govern. Myers v. Myers, 110 Colo. 412, 135 P.2d 235 (1943); Holman v. Holman, 114 Colo. 437, 165 P.2d 1015 (1946).

The rules of civil procedure apply to a divorce action, unless a contrary rule appears in the divorce statutes. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).

Service of notice in proceedings under this article is governed by the rules of civil procedure. In re Henne, 620 P.2d 62 (Colo. App. 1980).

On the question of venue in divorce actions, C.R.C.P. 98(c) is controlling, notwithstanding this article concerning divorce actions and kindred matters. People ex rel. Stanko v. Routt County Court, 110 Colo. 428, 135 P.2d 232 (1943); Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 (Colo. 1983).

For the purpose of the venue requirements in C.R.C.P. 98, the petitioner and respondent in a dissolution of marriage proceeding are the equivalent of a plaintiff and defendant, respectively. Brownell v. District Court ex rel. County of Larimer, 670 P.2d 762 (Colo. 1983).

There is no specific venue statute which would override the rules of civil procedure. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).

The rules of procedure do not govern procedure and practice in actions in divorce where they may conflict with the procedure and practice provided by the applicable statutes. Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969).

There is no exception in this section which dispenses with the necessity of filing a motion for a new trial, or which permits the court in the exercise of its discretion to dispense with such a motion. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Order under C.R.C.P. 54(b) authorized. This section, providing that the Colorado rules of civil procedure apply to dissolution proceedings except as "otherwise specifically provided in the act", and § 14-10-120, providing that a decree of dissolution of marriage is "final" when entered, subject to the right of appeal, authorize the trial court to enter an order pursuant to C.R.C.P. 54(b) making the decree final for purposes of appeal. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Appealability of decree on entry of such order. Upon the entry of an order under C.R.C.P. 54(b) a decree of dissolution of marriage may be appealed prior to entry of permanent orders on the issues of child custody, support, and division of property. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Applied in Hubbard v. District Court, 192 Colo. 98, 556 P.2d 478 (1976); Menne v. Menne, 194 Colo. 304, 572 P.2d 472 (1977); In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977); In re Gallegos, 41 Colo. App. 116, 580 P.2d 838 (1978); M & G Engines v. Mroch, 631 P.2d 1177 (Colo. App. 1981); In re Boyd, 643 P.2d 804 (Colo. App. 1982).


 

14-10-106 - Dissolution of marriage - legal separation.

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(1) (a) The district court shall enter a decree of dissolution of marriage when:

(I) The court finds that one of the parties has been domiciled in this state for ninety days next preceding the commencement of the proceeding;

(II) The court finds that the marriage is irretrievably broken; and

(III) The court finds that ninety days or more have elapsed since it acquired jurisdiction over the respondent either as the result of process pursuant to rule 4 of the Colorado rules of civil procedure or as the result of the act of the respondent in joining as copetitioner in the petition or in entering an appearance in any other manner.

(b) In connection with every decree of dissolution of marriage and to the extent of its jurisdiction to do so, the court shall consider, approve, or allocate parental responsibilities with respect to any child of the marriage, the support of any child of the marriage who is entitled to support, the maintenance of either spouse, and the disposition of property; but the entry of a decree with respect to parental responsibilities, support, maintenance, or disposition of property may be deferred by the court until a time subsequent to the decree of dissolution of marriage upon a finding that such deferral is necessary in the best interests of the parties.

(2) If a party requests a decree of legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form unless the other party objects.

 

Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-6. L. 73: p. 552, § 2. L. 77: (1)(a)(I) and (1)(a)(II) amended and (1)(a)(III) added, p. 823, § 1, effective June 1. L. 98: (1)(b) amended, p. 1395, § 34, effective February 1, 1999.

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I. General Consideration.
II. Domicile or Residency Required.
III. District Court's Jurisdiction.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 2, 205, 211-214, 862, 882.

C.J.S. See 27A C.J.S., Divorce, § § 1, 7, 13-21, 96-107, 369-371, 611-617.

Law reviews. For article on residence of plaintiff in divorce action, see 25 Dicta 110 (1948). For article, "Ten Years of Domestic Relations in Colorado — 1940-1950", see 27 Dicta 399 (1950). For comment on People v. District Court, appearing below, see 31 Dicta 118 (1954). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Domestic Relations", see 37 Dicta 55 (1960). For article, "One Year Review of Domestic Relations", see 40 Den. L. Ctr. J. 115 (1963). For article, "Child Support Obligations After Death of the Supporting Parent", see 16 Colo. Law. 790 (1987).

Annotator's note. Since § 14-10-106 is similar to repealed § § 46-1-2 and 46-1-3, C.R.S. 1963, § § 46-1-2 and 46-1-3, CRS 53, CSA, C. 56, § § 6 and 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

An action for divorce is of a purely personal nature. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967); Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936).

The power of the court in such an action to issue decrees relative to alimony, to exonerate the wife's estate from the husband's claims, and to make orders relative to the care and custody of the children is merely incidental to the primary object of changing the status or relation of the parties to each other. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).

Such actions, in the absence of a statute providing to the contrary, abate absolutely upon the death of either party before judgment, and cannot be revived in the name of or against the representatives of the deceased party. Wood v. Parkerson, 163 Colo. 271, 430 P.2d 467 (1967).

Masters should not be appointed as a routine matter in divorce cases where the issues are not complex and the facts are not complicated. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

The trial court may, for good cause shown, allow an extension of time within which to file an answer in a divorce action, even though the original time within which to file has expired. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

Not abuse to refuse continuance when party could not appear. It is not an abuse of discretion for the court to refuse to grant a continuance at a hearing as to the question of dissolution of the marriage, where the wife could not appear at the hearing. In re Lester, 647 P.2d 688 (Colo. App. 1982).

Deferring property division. A specific finding that it is in the best interest of the parties to defer the property division is required to prevent unwarranted delays in dividing property in dissolution of marriage cases. That purpose is complied with when the parties are given time limits within which to submit their proposals for the property division. In re Rose, 40 Colo. App. 176, 574 P.2d 112 (1977).

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II. DOMICILE OR RESIDENCY REQUIRED.

Domicile is keystone for jurisdiction to determine the marital status, and domicile of one of the parties to the divorce action is required. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).

Jurisdiction cannot be conferred by consent; lack of residence cannot be waived. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957); McMillion v. McMillion, 31 Colo. 33, 497 P.2d 331 (1972).

Actual bona fide residence is essential and must be established with some degree of certainty. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).

Unless the residence required by this section is in some manner shown, the court is without jurisdiction. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).

When bona fide residence in a county is not established, the court is under a mandatory duty to refuse to hear or grant any motions whatever in an action, and its dismissal must follow. People ex rel. Plunkett v. District Court, 127 Colo. 483, 258 P.2d 483 (1953).

Under statutes pertaining to jurisdiction in divorce proceedings, the word "residence" is synonymous with the legal meaning of the word "domicile", and a person's domicile, once established, continues until he acquires legal residence or domicile elsewhere. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).

Residence requires domicile. Residence for the purposes of divorce jurisdiction has always required and continues to require domicile. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).

Where husband's residency was established by an earlier proceeding as being in Colorado, that determination is res judicata and creates a presumption that he is still a resident, absent a showing that a new residency has been established. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).

Where jurisdictional facts are admitted in pleadings, decree is not void for failing to recite them. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).

Failure to allege 90-day residence immediately prior to proceeding is not fatal. Section 14-10-107 does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of this section was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).

Purpose of residency requirements was to prevent nonresidents from establishing temporary residence to obtain divorce. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).

An alien who made this state his home, in good faith, and had no residence elsewhere, was a citizen within the meaning of the former statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).

Where no witness testified to plaintiff's residence, in answer to any direct question, but in effect it appeared that he had resided here for many years prior to the institution of his action, it was held a compliance with the statute. Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911).

Where plaintiff alleged and proved more than a year's residence in Colorado before the commencement of the action, but defendant at the time of filing his cross complaint had resided in Colorado less than one year, the allegations of plaintiff's complaint vested the court with jurisdiction of plaintiff and the subject matter. Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949).

Where prior to the trial plaintiff had registered to vote in Colorado, his automobile was registered in Colorado, he had a Colorado driver's license, and for several months prior to trial he has been engaged in part-time civilian employment in Colorado Springs in a field in which he intended to continue on his retirement, and plaintiff had for four years been present in Colorado in military service, the foregoing facts formed a sound basis for the finding of the trial judge that the court had jurisdiction based on residence. Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).

Mere presence in state as member of armed forces insufficient to confer jurisdiction but after 90 days domicile may be established. A serviceman may establish a Colorado domicile to support jurisdiction for a Colorado court to grant a decree of dissolution of marriage after he has been stationed in Colorado for 90 days. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).

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III. DISTRICT COURT' S JURISDICTION.

The district courts are invested by the statute with jurisdiction in this class of actions. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891).

Only a final decree of divorce in a foreign state constitutes a bar to a divorce action in Colorado. In re Quay, 647 P.2d 693 (Colo. App. 1982).

Formerly, where a complaint alleged that the parties were residents of the state of Colorado, and that defendant had been guilty of acts of mental cruelty committed within the state of Colorado, and prayed for divorce alleging sufficient facts to give the court jurisdiction. Raygor v. Raygor, 29 Colo. App. 453, 485 P.2d 930 (1971).

Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).

A trial court which in fact lacks jurisdiction over the subject matter cannot acquire jurisdiction even though the parties expressly or impliedly consent thereto. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).

The jurisdiction of the district court of Adams county, arising from the filing and disposition of the divorce action would not preclude the district court of the city and county of Denver from proceeding pursuant to the reciprocal support act when the mother and children had moved to Nevada. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).

A district court is without jurisdiction to hear a divorce action involving two members of a reservation Indian tribe. Whyte v. District Court, 140 Colo. 334, 346 P.2d 1012 (1959), cert. denied, 363 U.S. 829, 80 S. Ct. 1600, 4 L. Ed.2d 1524 (1960).

Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962); Kelley v. Kelley, 161 Colo. 486, 423 P.2d 315 (1967).

Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In Re Booker, 833 P.2d 734 (Colo. 1992).

Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).

Jurisdiction retained until all matters resolved. A district court which properly acquires jurisdiction of the parties and subject matter in a dissolution action retains that jurisdiction until all matters arising out of the litigation are resolved. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).

Jurisdiction does not extend to resolution of all financial issues. Jurisdiction to grant a divorce does not automatically include the right to resolve all financial issues between the parties to the marriage. Viernes v. District Court, 181 Colo. 284, 509 P.2d 306 (1973).

Where it appears from a record and from the conduct of counsel that the parties agreed that a court would defer determination of permanent alimony, property settlement, and related matters until after the entry of a final decree. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

Although, resumption of marital relations by the parties to a divorce action affords good grounds for a dismissal thereof, it does not serve to divest the court of jurisdiction. Stockham v. Stockham, 145 Colo. 376, 358 P.2d 1026 (1961).

Husband's motion to abate and reduce child support amounted to consent to the court's personal jurisdiction. In Re Booker, 833 P.2d 734 (Colo. 1992).

Decree of dissolution entered after a spouse's death is void for lack of jurisdiction, and the dissolution action is abated. In Re Connell, 870 P.2d 632 (Colo. App. 1994).

This section mandates that bifurcation of dissolution proceedings may occur only if the district court finds that "such a deferral is necessary in the best interest of the parties" and should only be considered in exceptional cases. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).

A decree of dissolution when entered by the district court is final to dissolve the marriage even when the district court refuses to certify the decree as a final judgment appealable under C.R.C.P. 54 (b). Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).


 

14-10-107 - Commencement - pleadings - abolition of existing defenses - automatic, temporary injunction - enforcement.

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(1) All proceedings under this article shall be commenced in the manner provided by the Colorado rules of civil procedure.

(2) The petition in a proceeding for dissolution of marriage or legal separation shall allege that the marriage is irretrievably broken and shall set forth:

(a) The residence of each party and the length of residence in this state;

(b) The date and place of the marriage;

(c) The date on which the parties separated;

(d) The names, ages, and addresses of any living children of the marriage and whether the wife is pregnant;

(e) Any arrangements as to the allocation of parental responsibilities with respect to the children of the marriage and support of the children and the maintenance of a spouse;

(f) The relief sought; and

(g) A written acknowledgment by the petitioner and the co-petitioner, if any, that he or she has received a copy of, has read, and understands the terms of the automatic temporary injunction required by paragraph (b) of subsection (4) of this section.

(3) Either or both parties to the marriage may initiate the proceeding. In addition, a legal guardian, with court approval pursuant to section 15-14-315.5, C.R.S., or a conservator, with court approval pursuant to section 15-14-425.5, C.R.S., may initiate the proceeding. If a legal guardian or conservator initiates the proceeding, the legal guardian or conservator shall receive notice in the same manner as the parties to the proceeding.

(4) (a) Upon the commencement of a proceeding by one of the parties, or by a legal guardian or conservator of one of the parties, the other party shall be personally served in the manner provided by the Colorado rules of civil procedure, and he or she may file a response in accordance with such rules; except that, upon motion verified by the oath of the party commencing the proceeding or of someone in his or her behalf for an order of publication stating the facts authorizing such service, and showing the efforts, if any, that have been made to obtain personal service within this state, and giving the address or last-known address of each person to be served or stating that his or her address and last-known address are unknown, the court shall hear the motion ex parte and, if satisfied that due diligence has been used to obtain personal service within this state or that efforts to obtain the same would have been to no avail, shall order one publication of a consolidated notice in a newspaper published or having general circulation in the county in which the proceeding is filed, notwithstanding the provisions of article 70 of title 24, C.R.S. A consolidated notice shall be published at least once during a calendar month and shall list the proceedings filed subsequent to those named in the previously published consolidated notice, stating as to each proceeding the names of the parties, the action number, the nature of the action, that a copy of the petition and summons may be obtained from the clerk of the court during regular business hours, and that default judgment may be entered against that party upon whom service is made by such notice if he or she fails to appear or file a response within thirty days after the date of publication. Costs of publication of a consolidated notice may be assessed pro rata to each of the proceedings named in the notice; except that, if a party is indigent or otherwise unable to pay such publication costs, the costs shall be paid by the court from funds appropriated for the purpose. Service shall be complete upon such publication, and a response or appearance by the party served by publication under this subsection (4) shall be made within thirty days thereafter, or default judgment may be entered. No later than the day of publication, the clerk of the court shall also post for thirty consecutive days a copy of the process on a bulletin board in his or her office, and shall mail a copy of the process to the other party at his or her last-known address, and shall place in the file of the proceeding his or her certificate of posting and mailing. Proof of publication of the consolidated notice shall be by placing in the file a copy of the affidavit of publication, certified by the clerk of the court to be a true and correct copy of the original affidavit on file in the clerk's office.

(b) (I) Upon the filing of a petition for dissolution of marriage or legal separation by the petitioner or copetitioner or by a legal guardian or conservator on behalf of one of the parties and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, a temporary injunction shall be in effect against both parties until the final decree is entered or the petition is dismissed or until further order of the court:

(A) Restraining both parties from transferring, encumbering, concealing, or in any way disposing of, without the consent of the other party or an order of the court, any marital property, except in the usual course of business or for the necessities of life and requiring each party to notify the other party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the injunction is in effect;

(B) Enjoining both parties from molesting or disturbing the peace of the other party;

(C) Restraining both parties from removing the minor child or children of the parties, if any, from the state without the consent of the other party or an order of the court; and

(D) Restraining both parties, without at least fourteen days' advance notification and the written consent of the other party or an order of the court, from canceling, modifying, terminating, or allowing to lapse for nonpayment of premiums, any policy of health insurance, homeowner's or renter's insurance, or automobile insurance that provides coverage to either of the parties or the minor children or any policy of life insurance that names either of the parties or the minor children as a beneficiary.

(II) The provisions of the injunction shall be printed upon the summons and the petition and the injunction shall become an order of the court upon fulfillment of the requirements of subparagraph (I) of this paragraph (b). However, nothing in this paragraph (b) shall preclude either party from applying to the court for further temporary orders, an expanded temporary injunction, or modification or revocation under section 14-10-108.

(4.1) With regard to the automatic, temporary injunction that becomes effective in accordance with paragraph (b) of subsection (4) of this section when a petition for dissolution of marriage or legal separation is filed and served, whenever there is exhibited by the respondent to any duly authorized peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff a copy of the petition and summons duly filed and issued pursuant to this section, or, in the case of the petitioner, a copy of the petition and summons duly filed and issued pursuant to this section, together with a certified copy of the affidavit of service of process or a certified copy of the waiver and acceptance of service, and the peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff has cause to believe that a violation of that part of the automatic, temporary injunction which enjoins both parties from molesting the other party has occurred, such peace officer, level I, as defined in section 18-1-901, C.R.S., or sheriff shall use every reasonable means to enforce that part of the injunction against the petitioner or respondent. A peace officer shall not be held civilly or criminally liable for his action pursuant to this subsection (4.1) if his action is in good faith and without malice.

(5) Defenses to divorce and legal separation existing prior to January 1, 1972, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are hereby abolished.

(6) All issues raised by these proceedings shall be resolved by the court sitting without a jury.

 

Source: L. 71: R&RE, p. 521, § 1. C.R.S. 1963: § 46-1-7. L. 72: p. 296, § 1. L. 83: (4) amended, p. 641, § 1, effective July 1. L. 86: (4.1) added, p. 716, § 1, effective April 29. L. 87: (4.1) amended, p. 1578, § 21, effective July 10. L. 98: (2)(e) amended, p. 1395, § 35, effective February 1, 1999. L. 99: (2)(g) and (4)(b)(I)(D) added and (4)(b)(I)(B), (4)(b)(I)(C), and (4)(b)(II) amended, p. 1059, § § 1, 2, effective June 1; (3), (4)(a), and IP(4)(b)(I) amended, p. 465, § 3, effective July 1. L. 2000: (3) amended, p. 1833, § 7, effective January 1, 2001.

Editor's note: Section 7 of chapter 368, Session Laws of Colorado 2000, provides that the act amending subsection (3) applies to appointments of guardians or conservators on or after January 1, 2001.

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I. General Consideration.
II. Commencement of the Proceeding.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 196, 200, 243-247, 249, 266, 267, 282-294.

C.J.S. See 27A C.J.S., Divorce, § § 104-110, 120-126, 143-161.

Law reviews. For article, "Expediting Court Procedure", see 10 Dicta 113 (1933). For an article on divorce, see 16 Dicta 107 (1939). For article, "Comments on the Rules of Civil Procedure", see 22 Dicta 154 (1945). For article, "The Doctrine of Recrimination in Divorce Proceedings", see 21 Rocky Mt. L. Rev. 407 (1949). For article, "Forms Committee Presents Standard Pleading Samples to be Used in Divorce Litigation", see 29 Dicta 94 (1952). For article, "One Year Review of Criminal Law and Procedure", see 36 Dicta 34 (1959). For comment on Reed v. Reed, appearing below, see 31 Rocky Mt. L. Rev. 240 (1959). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Recovering the Parentally Kidnapped Child", see 12 Colo. Law. 1798 (1983). For article, "Injunctive Remedies for Interpersonal Violence", see 18 Colo. Law. 1743 (1989).

Annotator's note. Cases relevant to § 14-10-107 decided prior to its earliest source, L. 71, p. 521, § 1, have been included in the annotations to this section.

A court having properly acquired jurisdiction over the subject matter and parties to a divorce action, including minor children, is not at liberty to thereafter divest itself of such jurisdiction to the prejudice of interested parties. Cartier v. Cartier, 94 Colo. 157, 28 P.2d 1010 (1934).

In divorce proceedings, the parties are the husband and wife, and the jurisdiction of the divorce court is exercised as between husband and wife. Ross v. Ross, 89 Colo. 536, 5 P.2d 246 (1931).

There are, in reality, three parties to every divorce action: The plaintiff, the defendant, and the state. Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958).

A wife or husband may well be entitled to a divorce, but whether or not she or he will exercise that right is optional with her or him. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).

The policy of the court should be to discourage, rather than encourage, divorces. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).

When a plaintiff moves to dismiss a divorce action, it is the duty of a trial court to dismiss the case. McClanahan v. County Court, 136 Colo. 426, 318 P.2d 599 (1957).

The court cannot compel one to take a divorce when he does not desire to have one. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).

Due process notice and hearing requirements met. The basic requirements of the due process clause of our constitution are that no person be deprived of valuable rights without adequate notice and opportunity for hearing, and the divorce statute does make provision for such notice and hearing before the termination of the marriage. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Action for dissolution of marriage is proceeding in rem. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Scope of court's jurisdiction over nonresident respondent is established by this section. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Service by publication insufficient for jurisdiction in custody issue. Service by publication pursuant to the uniform act is not sufficient to vest a trial court with jurisdiction to resolve a custody issue. In re Blair, 42 Colo. App. 270, 592 P.2d 1354 (1979).

Default judgment would be proper after a member of the armed services entered an appearance and asserted cross claims. Federal Soldiers' and Sailors' Civil Relief Act is to protect members of the military from having default judgments entered against them without their notice of the pendency of the action. It does not prevent entry of such a judgment when there has been notice of the pendency of the action and the member has had adequate time to defend the action. In re Custody of Nugent, 955 P.2d 584 (Colo. App. 1997).

In an action for divorce it is sufficient compliance with the rules of civil procedure if a court makes findings on the material and ultimate facts. Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625 (1958).

Maintenance must be requested in petition. Under the uniform act, maintenance must be requested in the petition for dissolution. In re Boyd, 643 P.2d 804 (Colo. App. 1982).

All the provisions of the code which are applicable shall control in the trial and disposition of divorce cases, except as otherwise provided in the divorce act itself, either expressly or by necessary implication. People ex rel. Lackey v. District Court, 30 Colo. 123, 69 P. 597 (1902); Eickhoff v. Eickhoff, 27 Colo. 380, 61 P. 225 (1900).

The former defense of condonation was in the nature of confession and avoidance. Cochran v. Cochran, 164 Colo. 99, 432 P.2d 752 (1967).

Condoned adultery was not a bar to a divorce, because it was not a ground for divorce. Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).

If there was any collusion or fraud between the parties, the court would see to it that a decree for divorce is not entered. Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958).

Where each party was at fault, a court could not grant relief to either party. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).

Formerly, the defendant in an action for divorce could set up any matter by way of cross-complaint that would defeat the plaintiff's action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).

It was not necessary, in order to entitle the defendant to set up matters by way of cross-complaint, in bar of the plaintiff's action, that the defendant was seeking a divorce. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905).

Where a cross-complaint, defective because it omitted a jurisdictional averment so that no divorce could be awarded thereon to the defendant, must have been investigated, and could serve to defeat the action. Cupples v. Cupples, 33 Colo. 449, 80 P. 1039 (1905); Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).

Decedent's naming of her brother as the payable-on-death beneficiary of her accounts and joint accounts of her and her husband did not amount to an encumbrance of marital property. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).

Changing accounts from multi-party to sole accounts before divorce did not affect the other spouse's rights since the accounts remained part of the marital estate and either party had a legal right to deplete the joint accounts. Estate of Westfall v. Westfall, 942 P.2d 1227 (Colo. App. 1996).

It was error to receive a verdict which failed to respond to counter charge of violation of marital duties pleaded in answer. Garver v. Garver, 52 Colo. 227, 121 P. 165 (1911).

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II. COMMENCEMENT OF THE PROCEEDING.

Domicile in the state is alone sufficient to bring an absent defendant in a divorce action within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service. In re Petition of Kraudel v. Benner, 148 Colo. 525, 366 P.2d 667 (1961).

Its adequacy so far as due process is concerned is dependent on whether or not the form of substituted service provided for such cases and employed is reasonably calculated to give him actual notice of the proceedings and an opportunity to be heard, if it is, the traditional notions of fair play and substantial justice implicit in due process are satisfied. In re Petition of Kraudel v. Benner, 148 Colo. 525, 366 P.2d 667 (1961).

Fraud relative to service by publication operates to void a divorce decree. In re Wilson, 653 P.2d 85 (Colo. App. 1982).

A decree of divorce based upon constructive service is void unless the record shows a strict compliance with all the statutory requirements. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).

The record must show a compliance with the statute respecting the mailing of a copy of the summons to the defendant to justify the entry of a judgment. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).

Parol proof that the defendant had actual knowledge of the pendency of the action was not considered on the hearing of his motion to set aside the judgment, because of the failure to mail him a copy of the summons, as required by law. Roberts v. Roberts, 3 Colo. App. 6, 31 P. 941 (1892).

Where upon a service of a summons in a divorce suit in which the defendant, if served within the county in which the action was pending, was required to appear and answer the complaint within 20 days thereafter, the court was not authorized to proceed to a judgment if defendant failed to comply with such command, for it was in direct conflict with the mandatory provision which gives a defendant 30 days to appear and answer in such circumstances. Mottschall v. Mottschall, 31 Colo. 260, 72 P. 1053 (1903).

Where plaintiff had removed her child to a foreign country, a motion by her attorney for leave to withdraw as her counsel was properly denied, since such withdrawal would make service of process impossible and deprive the trial court of authority to make proper orders. Holland v. Holland, 150 Colo. 442, 373 P.2d 523 (1962).

Failure to allege 90-day residency immediately prior to proceeding not fatal. This section does not require that a petition for dissolution of marriage contain an allegation that the residency period includes the 90 days immediately prior to the commencement of the proceeding, and petitioner's failure to make her allegation in the words of section 14-10-106 was not a fatal defect. In re Alper, 33 Colo. App. 225, 517 P.2d 404 (1973).

Theory of mutual mistake not waived by failure to raise issue in reply to petition. In a dispute over a separation agreement, a theory of mutual mistake is not waived by failure to raise the issue in the reply to the petition for dissolution of marriage, since no reply is required and averments in a pleading to which no responsive pleading is required shall be taken as denied or avoided. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).

Withdrawal of marital property after dissolution proceeding commenced. In determining the total value of the marital property, trial court did not err in including the $45,000 husband, had withdrawn from the fund after the dissolution proceeding had commenced since husband, who had not obtained an order of the court or consent of his wife before using the money, failed to show that the withdrawal was done either in the usual course of business or was for the necessities of life. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Trial court properly credited husband with the amount of funds existing prior to wife's sale of stock shares when wife cashed out shares after entry of the automatic temporary injunction. Wife's argument that the parties routinely cashed out shares to meet living expenses was rejected by the court as a rationale for not including the amount she cashed out in the division of marital shares, since the prior sales of stock took place inconsistently and was not used as income on a monthly basis. In re Huston, 967 P.2d 181 (Colo. App. 1998).


 

14-10-107.5 - Entry of appearance to establish support.

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(1) The attorney for the county department of social services may file an entry of appearance on behalf of the department in any proceeding for dissolution of marriage or legal separation under this article for purposes of establishing, modifying, and enforcing child support and medical support of a child on whose behalf the custodian of said child is receiving support enforcement services pursuant to section 26-13-106, C.R.S., and for purposes of establishing and enforcing reimbursement of payments for aid to families with dependent children.

(2) The county department of social services, upon the filing of the entry of appearance described in subsection (1) of this section or upon the filing of a legal pleading to establish, modify, or enforce the support obligation, shall be from that date forward, without leave or order of court, a third-party intervenor in the action for the purposes outlined in subsection (1) of this section without the necessity of filing a motion to intervene.

 

Source: L. 89: Entire section added, p. 792, § 13, effective July 1. L. 90: Entire section amended, p. 889, § 8, effective July 1.


 

14-10-107.7 - Required notice of involvement with department of human services.

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When filing a petition for dissolution of marriage or legal separation, a petition in support or proceedings for the allocation of parental responsibilities with respect to the children of the marriage, or any other matter pursuant to this article with the court, if the parties have joint legal responsibility for a child for whom the petition seeks an order of child support, the parties shall be required to indicate on a form prepared by the court whether or not the parties or the dependent children of the parties have received within the last five years or are currently receiving benefits or public assistance from either the state department of human services or county department of social services. If the parties indicate that they have received such benefits or assistance, the court shall inform the appropriate delegate child support enforcement unit so that the unit can determine whether any support enforcement services are required. There shall be no penalty for failure to report as specified in this section.

 

Source: L. 92: Entire section added, p. 202, § 8, effective August 1. L. 93: Entire section amended, p. 1558, § 6, effective September 1. L. 94: Entire section amended, p. 2644, § 106, effective July 1. L. 98: Entire section amended, p. 1396, § 36, effective February 1, 1999.

Cross references: For the legislative declaration contained in the 1994 act amending this section, see section 1 of chapter 345, Session Laws of Colorado 1994.


 

14-10-107.8 - Required notice of prior restraining orders to prevent domestic abuse - petitions for dissolution of marriage or legal separation.

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(1) When filing a petition for dissolution of marriage or legal separation pursuant to this article, the filing party shall have a duty to disclose to the court the existence of any prior temporary or permanent restraining orders and civil protection orders to prevent domestic abuse issued pursuant to article 14 of title 13, C.R.S., any mandatory restraining order and protection orders issued pursuant to section 18-1-1001, C.R.S., and any emergency protection orders issued pursuant to section 13-14-103, C.R.S., entered against either party by any court within two years prior to the filing of the petition of dissolution of marriage or legal separation. The disclosure required pursuant to this section shall address the subject matter of the previous restraining, civil protection, or emergency protection orders, including the case number and jurisdiction issuing such orders.

(2) After the filing of the petition, the court shall advise the parties concerning domestic violence services and potential financial resources that may be available and shall strongly encourage the parties to obtain such services for their children, in appropriate cases. If the parties' children participate in such services, the court shall apportion the costs of such services between the parties as it deems appropriate.

(3) The parties to a domestic relations petition filed pursuant to this article shall receive information concerning domestic violence services and potential financial resources that may be available.

 

Source: L. 95: Entire section added, p. 83, § 1, effective July 1. L. 99: Entire section amended, p. 502, § 9, effective July 1. L. 2001: Entire section amended, p. 978, § 1, effective August 8. L. 2004: (1) amended, p. 554, § 10, effective July 1. L. 2005: (1) amended, p. 764, § 22, effective June 1.


 

14-10-108 - Temporary order or temporary injunction.

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(1) In a proceeding for dissolution of marriage, legal separation, the allocation of parental responsibilities, or declaration of invalidity of marriage or a proceeding for disposition of property, maintenance, or support following dissolution of the marriage, either party may move for temporary payment of debts, use of property, maintenance, parental responsibilities, support of a child of the marriage entitled to support, or payment of attorney fees. The motion may be supported by an affidavit setting forth the factual basis for the motion and the amounts requested.

(1.5) The court may consider the allocation of parental responsibilities in accordance with the best interests of the child, with particular reference to the factors specified in section 14-10-124 (1.5).

(2) As a part of a motion of such temporary orders or by an independent motion accompanied by an affidavit, either party may request the court to issue a temporary order:

(a) Restraining any party from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life, and, if so restrained, requiring him to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued;

(b) Enjoining a party from molesting or disturbing the peace of the other party or of any child;

(c) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result.

(2.3) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)

(2.5) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)

(3) A party to an action filed pursuant to this article may seek, and the court may issue, a temporary or permanent protection order pursuant to the provisions of section 13-14-102, C.R.S.

(4) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)

(5) A temporary order or temporary injunction:

(a) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;

(b) May be revoked or modified prior to final decree on a showing by affidavit of the facts necessary to revocation or modification of a final decree under section 14-10-122; and

(c) Terminates when the final decree is entered, unless continued by the court for good cause to a date certain, or when the petition for dissolution or legal separation is voluntarily dismissed.

(6) (Deleted by amendment, L. 2004, p. 553, § 4, effective July 1, 2004.)

(7) At the time a protection order is requested pursuant to section 13-14-102, C.R.S., the court shall inquire about, and the requesting party and such party's attorney shall have an independent duty to disclose, knowledge such party and such party's attorney may have concerning the existence of any prior protection orders or restraining orders of any court addressing in whole or in part the subject matter of the requested protection order.

 

Source: L. 71: R&RE, p. 522, § 1. C.R.S. 1963: § 46-1-8. L. 73: pp. 553, 555, § § 3, 12. L. 81: (6) added, p. 903, § 1, effective May 13. L. 83: (1) amended, p. 644, § 1, effective April 26; (1.5) added, p. 645, § 1, effective June 10. L. 87: (1.5) amended, p. 575, § 4, effective July 1. L. 94: (2.5) and (7) added and (3) amended, p. 2008, § 4, effective January 1, 1995. L. 98: (2.3) added and (3) amended, p. 245, § 4, effective April 13; (1) and (2.5) amended, p. 1396, § 37, effective February 1, 1999. L. 99: (2.3) amended, p. 501, § 4, effective July 1. L. 2000: (1.5) amended, p. 1844, § 24, effective August 2. L. 2003: (2.3), (2.5), (3), (6), and (7) amended, p. 1010, § 14, effective July 1. L. 2004: IP(2), (2.3), (2.5), (3), (4), (6), and (7) amended, p. 553, § 4, effective July 1.

 

Editor's note: Subsection (1.5) was contained in a 2000 act that was passed without a safety clause. For further explanation concerning the effective date, see page vii of this volume.

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I. General Consideration.
II. Temporary Orders.
III. Temporary Injunctions.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 652-656, 1047-1050.

C.J.S. See 27A C.J.S., Divorce, § § 315-342.

Law reviews. For article, "Legislative Update", see 12 Colo. Law. 1257 (1983).

Annotator's note. Since § 14-10-108 is similar to repealed § 46-1-5, C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The general rule is that courts of equity should and will in a proper case enjoin a party to a divorce or separate maintenance action from proceeding in an annulment suit in a foreign jurisdiction. Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963).

Evidence of extreme circumstances necessitating sale of co-owned property. If there is evidence of extreme circumstances that co-owned property needs to be sold to preserve equities therein, a court may decree a sale of the property prior to a final determination of the merits of the dissolution action. In re Gavend, 781 P.2d 161 (Colo. App. 1989).

Best interest standard, and not the endangerment standard, was properly applied to award father residential care despite mother's award of temporary custody, where awarding father residential custody of the children was not abuse of discretion and record supported findings. In re Monteil, 960 P.2d 717 (Colo. App. 1998).

Applied in In re Westlake, 674 P.2d 1386 (Colo. App. 1983).

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II. TEMPORARY ORDERS.

Law reviews. For article, "Attorney Fees at Temporary Orders: Reality or Illusion?", see 24 Colo. Law. 2185 (1995).

An order granting a temporary change of custody following an ex parte hearing with no notice to the mother denied her due process where no evidence was presented and no finding was made that irreparable injury would result if no order were issued until the time for responding had elapsed. Olson v. Priest, 193 Colo. 222, 564 P.2d 122 (1977).

Court lost jurisdiction to enforce order. When an order dismissing a marriage dissolution action was signed, the court was divested of any further jurisdiction in that action and had no jurisdiction to hold husband in contempt for failing to pay support required by temporary order which was entered in that action. Hill v. District Court, 189 Colo. 356, 540 P.2d 1079 (1975).

The purpose of temporary alimony is to allow a wife to live in her accustomed manner during pendency of the action and to provide her with means to properly litigate the controversy, and is not definitive of her entitlement to support under permanent orders. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971); Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954).

If she possesses independent means sufficient for these purposes the allowances should not be granted; however, she is not required first to impair the capital of her separate estate. Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954).

The allowance of temporary alimony is dependent upon the existence of the marriage relation, and all necessary facts to establish such relation must be made to appear at least prima facie before such allowance is made by the court, but where a prima facie case is established alimony should be awarded. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

In an action for divorce where it is clear upon the admitted facts that the marriage alleged in the complaint is void in law, or where the preponderance of the evidence tends to show that there was never a marriage in fact, temporary alimony should not be awarded, and if awarded will be set aside on review. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

It appears that in a divorce proceeding, the right to apply for alimony pendente lite is dependent upon the previous filing of a complaint for a divorce, and then the application may be made to, and acted upon, by the court in term time, or by the judge in vacation. Eickhoff v. Eickhoff, 14 Colo. App. 127, 59 P. 411 (1899).

The allowance to be made for temporary alimony, attorney fees, and suit money is within the sound discretion of the trial court, and unless that discretion has been abused the order of allowance will not be disturbed on review. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926); Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).

In a divorce suit where the wife was in indigent circumstances and the husband was a man of large means, an allowance of $50 per month as temporary alimony, $250 attorney fees, and $25 suit money was not excessive, and was not an abuse of discretion by the trial court. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

In determining the amount of temporary alimony to be allowed, the ability of the husband is an element to be considered, and the same element must necessarily be taken into consideration in fixing the amount of permanent alimony. Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).

If the evidence as to the ability of the husband to pay temporary alimony in a divorce action is conflicting, the order of the trial court based thereon is not reviewable. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

An award of temporary alimony may be modified by the supreme court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

No appeal from temporary orders that have terminated due to entry of permanent orders. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

Temporary alimony awarded a wife cannot be modified except upon motion and sufficient showing in support thereof; thus, where no motion was made respecting the alimony, it was an abuse of discretion for the court to suspend the order for temporary alimony at a hearing on a citation for the husband to show cause why he was not in contempt of court for failure to pay alimony Wright v. Wright, 122 Colo. 179, 220 P.2d 881 (1950).

The question whether an order for temporary alimony should be modified is also within the discretion of the court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

Orders resolving child support issue are final. In dissolution proceedings, orders which resolve the issue of child support, even on a temporary basis, are final for purposes of review. In re Henne, 620 P.2d 62 (Colo. App. 1980).

"Final decree", as used in subsection 14-10-108 (5)(c), is not limited to a final decree of dissolution, but may also include a final order concerning child support. In re Price, 727 P.2d 1073 (Colo. 1986); In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).

Where court continued determination of permanent child support to time subsequent to entry of decree of dissolution, temporary child support order was not terminated on date of dissolution by virtue of statute terminating temporary order or temporary injunction when final decree is entered. In re Price, 727 P.2d. 1073 (Colo. 1986).

Temporary orders as to maintenance are reviewable as a final judgment even if there has not been a final judgment in the form of a decree of dissolution. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).

If the decree of dissolution leaves the issue of maintenance to be resolved later, an order of temporary maintenance is not terminated on the date of dissolution by virtue of subsection (5)(c). When possible, however, at the time the decree is entered, the court should set a definite date for consideration of permanent orders concerning maintenance. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).

A request for a temporary award includes attorney fees and related litigation expenses. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).

An award of attorney fees is a final judgment subject to appellate review as it establishes a financial right and obligation of the parties until the entry of permanent orders. A temporary award of attorney fees is based upon the same underlying premise as a temporary award of maintenance or child support in that it concerns the immediate financial need of the party to whom the attorney fees are awarded. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).

The duty to pay maintenance is independent and is not limited or specifically tied to the entry of a decree of dissolution. To allow a party to terminate his or her maintenance payments when a decree of dissolution is entered that is mute on the issue of maintenance would disturb the status quo, frustrate a central purpose of the statute, and allow evasion of an important stabilizing aspect of the dissolution process. In re Nussbeck, 899 P.2d 347 (Colo. App. 1995), rev' d on other grounds, 974 P.2d 493 (Colo. 1999).

Where a husband, plaintiff in a divorce suit, is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).

Where a wife, defendant in a divorce suit, is a nonresident of the state and desires to come to Colorado to defend the suit, she should be given an opportunity to do so and the plaintiff should be required to deposit in court a sufficient sum to pay to the state the expenses of the wife which shall be paid to her upon her arrival, within a reasonable time, with such additional sum as may be necessary to properly defend the suit. Cairnes v. Cairnes, 29 Colo. 260, 68 P. 233 (1902).

Where a trial court denies motions of both parties with respect to temporary alimony pending trial on the merits, a writ of error to review such action is premature. Hizel v. Hizel, 132 Colo. 379, 288 P.2d 354 (1955).

Since temporary orders are not in any way res judicata as to matters properly the subject of permanent order, a showing of change of circumstances is not an essential element for the trial court's consideration in its establishment of permanent alimony. MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971).

There is no enforceable temporary order where the claim for spousal maintenance is based on a referee's recommendation and where the transcript is not signed and no separate order of the court is entered. In re Burke, 680 P.2d 1338 (Colo. App. 1984).

Formerly, an execution was authorized on an order for temporary alimony. Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922); Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886).

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III. TEMPORARY INJUNCTIONS.

Restraining orders should not be issued in divorce actions except in circumstances of actual emergency, and where it is clearly established that grounds exist for granting such extraordinary remedy. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

It is an unusual situation in which an order on one spouse to refrain from transferring property is inadequate to afford needed protection to the other who seeks to maintain the status quo pending a hearing on notice. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

The right of the husband in a divorce action to manage his property and carry on his business in due course is fundamental and should not be interfered with or suspended by the issuance of ex parte restraining orders without notice upon persons with whom he transacts business, except upon a clear showing of emergency and a need therefor. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

The practice of bringing in third parties as defendants in a divorce action and issuing restraining orders against them without notice is not to be encouraged, it being only under extraordinary circumstances that such persons engaged in legitimate business transactions with one of the parties to the divorce action and not involved in their marital difficulties may be restrained or enjoined from continuing business activities with one of the spouses involved. Simpson v. Simpson, 151 Colo. 88, 376 P.2d 55 (1962).

Any reasons justifying permanent injunctive relief in dissolution of marriage proceeding must arise from factors independent of those with which the trial court is empowered to deal in a dissolution proceeding. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).


 

14-10-109 - Enforcement of restraining orders.

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The duties of peace officers enforcing orders issued pursuant to section 14-10-107 or 14-10-108 shall be in accordance with section 18-6-803.5, C.R.S., and any rules adopted by the Colorado supreme court pursuant to said section.

 

Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-9. L. 92: Entire section amended, p. 176, § 2, effective July 1. L. 94: Entire section amended, p. 2009, § 5, effective January 1, 1995.

Cross references: For civil contempt, see Rule 107, C.R.C.P.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 295-300.


 

14-10-110 - Irretrievable breakdown.

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(1) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken or one of the parties has so stated and the other has not denied it, there is a presumption of such fact, and, unless controverted by evidence, the court shall, after hearing, make a finding that the marriage is irretrievably broken.

(2) If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and shall:

(a) Make a finding whether the marriage is irretrievably broken; or

(b) Continue the matter for further hearing not less than thirty days nor more than sixty days later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken.

 

Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-10.

Cross references: For marriage counseling, see article 12 of this title.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 343, 354, 355, 382, 383.

C.J.S. See 27A C.J.S., Divorce, § § 13-15, 18, 163.

Law reviews. For article, "Is Residence of the Plaintiff, in Colorado, Necessary to Support a Divorce Action Based on Cruelty Within the State, If Defendant Is a Resident of Colorado?", see 24 Dicta 110 (1947). For article, "When the State Had an Interest in Marriage: Colorado's Divorce Acts, 1861-1917", see 16 Colo. Law. 1627 (1987).

Annotator's note. Some of the cases appearing under § 14-10-110 were decided under repealed § 46-1-1, C.R.S. 1963, § 46-1-1, CRS 53, CSA, C. 56, § 1, and laws antecedent thereto, which specifically enumerated the grounds for divorce.

Marriage is a contract between the parties, but it is distinguishable from the ordinary civil contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Marriage is the subject of a more immediate interest to the state than is the ordinary contract. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Marriage is not a "contract" within the meaning of the contract clause of the constitution. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

General assembly control of marriage is constitutional. Since marriage is not a contract within the meaning of the constitutional contract clause, the general assembly has broad control over it, the reasonable exercise of which will not run afoul of the constitutional protection of contracts. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

In attempting to increase availability of divorces to estranged spouses, the general assembly recognized that public policy does not encourage keeping two people together once the legitimate objects of matrimony have ceased to exist. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Decree not automatic. Although the dissolution of marriage statute was intended as a "no-fault" divorce act, the actual granting of the decree is not automatic or perfunctory under all circumstances. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Court's discretion to continue case sufficient safeguard against hastiness. The general assembly declined to include in the Colorado act, which is modeled on the uniform dissolution of marriage act, the language of the uniform act allowing the court to order a conciliation conference, and thus, in effect, determined that vesting discretion in the court to continue the case from 30 to 60 days was sufficient safeguard against hasty and insensate decisions. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

"Irretrievable" breakdown is no more vague or incapable of definition than "became impotent through immoral conduct", has been "extremely and repeatedly cruel", or being an "habitual drunkard", all of which constituted, under the prior Colorado statute, grounds for divorce. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

A finding of irretrievable breakdown is one of fact and, where the allegation of the petition is denied, it must be proven as any other essential element of the cause of action. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Where the parties do not agree as to the breakdown of the marriage, it is imperative for the court to weigh all the evidence and make its own independent determination of that fact. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

The issue of whether a marriage has been irretrievably broken is a question of fact to be resolved upon consideration of the facts and circumstances of each case, and the factors underlying that determination will necessarily vary from case to case. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Finding of irretrievable breakdown must be proved when denied. While the dissolution of marriage act did eliminate all the former defenses to divorce in this state, it did not eliminate the necessity of proving an irretrievable breakdown where that basic allegation is denied in the pleadings. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

No requirement that valid goals of marriage must be unattainable. There is no requirement that for the marriage to be beyond redemption, substantial proportion of legitimate objectives of a marriage must be no longer attainable by the parties. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Elucidating valid goals of marriage which must be either lost or beyond accomplishment before the marriage can be classified as irretrievably broken would constitute an amendment to the act, and that power is reserved exclusively for the general assembly. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

The parentage of a child is not an issue in a divorce or annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).

Formerly, before a court could enter its findings in favor of a defendant, it must have necessarily found that the defendant had not been guilty of a violation of the marriage contract. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).

In a divorce action where a defendant pleaded grounds for divorce by way of counterclaim, the issue was the guilt or innocence of the parties on the grounds alleged against each other, and findings by a trial court that plaintiff was entitled to a divorce was necessarily a finding against the defendant on the issues. Schleiger v. Schleiger, 137 Colo. 279 324 P.2d 370 (1958).

Formerly, the grounds for divorce in this state were purely statutory. Pleyte v. Pleyte, 1 Colo. App. 70, 28 P. 23 (1891); Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Githens v. Githens, 78 Colo. 102, 239 P. 1023 (1925).

For the former ground for divorce, adultery, see Redington v. Redington, 2 Colo. App. 8, 29 P. 811 (1892); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Jones v. Jones, 71 Colo. 420, 207 P. 596 (1922).

For the former ground for divorce, desertion, see Stein v. Stein, 5 Colo. 55 (1879); Calvert v. Calvert, 15 Colo. 390, 24 P. 1043 (1890); Johnson v. Johnson, 22 Colo. 20, 43 P. 130, 55 Am. St. R. 113 (1895); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922); Oates v. Oates, 72 Colo. 195, 210 P. 325 (1922); Mulhollen v. Mulhollen, 145 Colo. 479, 358 P.2d 887 (1961).

For the former ground for divorce, cruelty, see Sylvis v. Sylvis, 11 Colo. 319, 17 P. 912 (1888); Gilpin v. Gilpin, 12 Colo. 504, 21 P. 612 (1889); Williams v. Williams, 1 Colo. App. 281, 28 P. 726 (1892); Geisseman v. Geisseman, 34 Colo. 481, 83 P. 635 (1905); Harding v. Harding, 36 Colo. 106, 85 P. 423 (1906); Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488 (1911); Shaff v. Shaff, 72 Colo. 184, 210 P. 400 (1922); Miller v. Miller, 90 Colo. 428, 9 P.2d 616 (1932); Hilburger v. Hilburger, 110 Colo. 409, 135 P.2d 138 (1943); Harms v. Harms, 120 Colo. 212, 209 P.2d 552 (1949); Mentzer v. Mentzer, 120 Colo. 412, 209 P.2d 920 (1949); Carroll v. Carroll, 135 Colo. 379, 311 P.2d 709 (1957); Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); Reed v. Reed, 138 Colo. 74, 329 P.2d 633 (1958); Lininger v. Lininger, 138 Colo. 338, 333 P.2d 625 (1958); Poos v. Poos, 145 Colo. 334, 359 P.2d 3 (1961); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Cochran v. Cochran, 164 Colo. 99, 432 P.2d 752 (1967); Moats v. Moats, 168 Colo. 120, 450 P.2d 64 (1969).

For the former ground for divorce, nonsupport by the husband, see Rogers v. Rogers, 57 Colo. 132, 140 P. 193 (1914).

Applied in In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979); In re Lester, 647 P.2d 688 (Colo. App. 1982).


 

14-10-111 - Declaration of invalidity.

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(1) The district court shall enter its decree declaring the invalidity of a marriage entered into under the following circumstances:

(a) A party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs, or other incapacitating substances.

(b) A party lacked the physical capacity to consummate the marriage by sexual intercourse, and the other party did not at the time the marriage was solemnized know of the incapacity.

(c) A party was under the age as provided by law and did not have the consent of his parents or guardian or judicial approval as provided by law.

(d) One party entered into the marriage in reliance upon a fraudulent act or representation of the other party, which fraudulent act or representation goes to the essence of the marriage.

(e) One or both parties entered into the marriage under duress exercised by the other party or a third party, whether or not such other party knew of such exercise of duress.

(f) One or both parties entered into the marriage as a jest or dare.

(g) The marriage is prohibited by law, including the following:

(I) A marriage entered into prior to the dissolution of an earlier marriage of one of the parties;

(II) A marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood;

(III) A marriage between an uncle and a niece or between an aunt and a nephew, whether the relationship is by the half or the whole blood, except as to marriages permitted by the established customs of aboriginal cultures;

(IV) A marriage which was void by the law of the place where such marriage was contracted.

(2) A declaration of invalidity under subsection (1) of this section may be sought by any of the following persons and shall be commenced within the times specified, but in no event may a declaration of invalidity be sought after the death of either party to the marriage, except as provided in subsection (3) of this section:

(a) For the reasons set forth in either subsection (1) (a), (1) (d), (1) (e), or (1) (f) of this section, by either party to the marriage who was aggrieved by the conditions or by the legal representative of the party who lacked capacity to consent no later than six months after the petitioner obtained knowledge of the described condition;

(b) For the reason set forth in subsection (1) (b) of this section, by either party no later than one year after the petitioner obtained knowledge of the described condition;

(c) For the reason set forth in subsection (1) (c) of this section, by the underaged party, his parent, or his guardian, if such action for declaration of invalidity of marriage is commenced within twenty-four months of the date the marriage was entered into.

(3) A declaration of invalidity, for the reason set forth in subsection (1) (g) of this section, may be sought by either party; by the legal spouse in case of bigamous, polygamous, or incestuous marriages; by the appropriate state official; or by a child of either party at any time prior to the death of either party or prior to the final settlement of the estate of either party and the discharge of the personal representative, executor, or administrator of the estate or prior to six months after an estate is closed under section 15-12-1204, C.R.S.

(4) Children born of a marriage declared invalid are legitimate.

(5) Marriages declared invalid under this section shall be so declared as of the date of the marriage.

(6) The provisions of this article relating to the property rights of spouses, maintenance, and support of and the allocation of parental responsibilities with respect to the children on dissolution of marriage are applicable to decrees of invalidity of marriage.

(7) No decree shall be entered unless one of the parties has been domiciled in this state for thirty days next preceding the commencement of the proceeding or unless the marriage has been contracted in this state.

 

Source: L. 71: R&RE, p. 523, § 1. C.R.S. 1963: § 46-1-11. L. 73: pp. 553, 1647, § § 4, 5, 6. L. 80: (1)(g)(II) amended, p. 794, § 47, effective June 5. L. 98: (6) amended, p. 1397, § 38, effective February 1, 1999.

Cross references: For the effect of a declaration of invalidity on marital agreements, see § 14-2-308.

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I. General Consideration.
II. The Invalidity of Marriage Proceeding.
III. Mental Incapacity to Consent to Marriage.
IV. Legitimacy of Children.
V. Conflict of Laws.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 3, 120, 121; 52 Am. Jur.2d, Marriage, § § 14, 17, 20, 21, 23, 26, 30-32, 62, 63, 66.

C.J.S. See 55 C.J.S., Marriage, § § 9-49, 63-68, 83.

Law reviews. For article, "Ten Years of Domestic Relations in Colorado — 1940-1950", see 27 Dicta 399 (1950). For note, "The Presumption of Death and a Second Marriage", see 27 Dicta 414 (1950). For article, "A Decade of Colorado Law: Conflict of Laws, Security, Contracts and Equity", see 23 Rocky Mt. L. Rev. 247 (1951). For note, "Jurisdiction to Annul a Marriage Celebrated Without the Forum", see 26 Rocky Mt. L. Rev. 57 (1953). For article, "One Year Review of Domestic Relations", see 35 Dicta 36 (1958). For article, "Choice of the Applicable Law in Colorado", see 35 Dicta 162 (1958). For article, "One Year Review of Domestic Relations", see 39 Dicta 102 (1962). For article, "The Incestuous Marriage — Relic of the Past", see 36 U. Colo. L. Rev. 473 (1964). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969).

Annotator's note. Since § 14-10-111 is similar to repealed § 46-3-1 et seq., CRS 53, and CSA, C. 56, § § 33 through 38, relevant cases construing those provisions have been included in the annotations to this section.

There is a wide distinction between a conventional annulment proceeding and a conventional action for divorce. An annulment proceeding is one in which the validity of a marriage is challenged from its inception on the ground that one or both of the parties was underage, on the ground that one or both of the parties was married to another person, on the ground that the proceeding was attended by fraud, or on some other fairly comparable ground. An action for divorce is one in which termination is sought of a valid marriage. Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).

For the effect of an invalidity of marriage determination on maintenance payments which were terminated upon remarriage, see Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966).

Reestablishment of a support obligation following annulment of a subsequent marriage must be decided on a case-by-case basis, taking into account the facts and equities of the particular case. In re Cargill and Rollins, 843 P.2d 1335 (Colo. 1993).

The children of the deceased had no standing to challenge the validity of his marriage when it was not prohibited. Matter of Estate of Fuller, 862 P.2d 1037 (Colo. App. 1993).

Applied in In re Heinzman, 198 Colo. 36, 596 P.2d 61 (1979).

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II. THE INVALIDITY OF MARRIAGE PROCEEDING.

Originally, authority to grant divorces and annul marriages in England was vested solely in the ecclesiastical courts. This authority terminated around 1870, during the reign of Victoria, at which time a special court was created to hear and decide all divorces and annulments of marriage, but ecclesiastical courts and their authority never became a part of American common law. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

An annulment action is a statutory proceeding in which the court exercises equity powers. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

The severance of marital ties, the entry of custodial orders regarding children, the application of equitable principles in divorce and annulment actions, and so forth, are or have aspects of the conventional activities of a court of equity. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

This article provides that in suits for annulment the practice and proceedings shall be in accordance with the rules of civil procedure. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

In the interplay of this section and the rules of civil procedure, there is no trial by jury of an annulment suit as a matter of right. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

A cursory reading of C.R.C.P. 38(a) makes obvious the conclusion that an annulment suit does not come within the meaning of any of the enumerated actions requiring trial by jury unless waived. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

But C.R.C.P. 39(c) provides that in actions not triable by a jury, the court may upon motion or of its own initiative try any issue with an advisory jury, or when statute provides for trial without a jury, the court with the consent of both parties may order a jury trial. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

Proof in an annulment case must be clear and convincing, and the court should so instruct the jury, and the preponderance rule is inapplicable. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

The giving of confusing and incompatible instructions in an annulment action is fatal error. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

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III. MENTAL INCAPACITY TO CONSENT TO MARRIAGE.

Marriages are not easily annulled, and consequently, there must be clear and convincing proof that such party was mentally incompetent at the time the marriage was entered into. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

An instruction "that the husband would be incapable of giving voluntary consent if you find that at the time of the marriage ceremony he did not have sufficient mental capacity to understand the nature, obligations, and responsibilities of a marriage contract, and to appreciate the solemnity of the marriage vows" goes beyond the statutory ground for annulment which provides that if "one or both parties were mentally incapable of giving voluntary consent to the marriage", the marriage may be set aside. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

In an action for annulment of a marriage on the ground of mental incapacity, testimony of a witness to marriage ceremony that she observed plaintiff before, during, and after ceremony, conversed with him, and that in her opinion he was mentally competent, was erroneously rejected, the credibility of such witness being for the jury. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

Testimony of a psychiatrist who based his opinion on the incompetency of plaintiff, and in part upon the testimony of another witness, was erroneously admitted. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

An order of adjudication of mental incompetency was properly admitted. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

Evidence of forgery of a blood test certificate was immaterial and inadmissible, as not tending to prove any of the alleged grounds of annulment. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

Evidence that wife had applied for driver's license and signed a delinquency tax statement in former name, subsequent to the alleged marriage, were remote circumstances having no legitimate bearing on the issues and should have been rejected. Young v. Colorado Nat'l Bank, 148 Colo. 104, 365 P.2d 701 (1961).

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IV. LEGITIMACY OF CHILDREN.

A judgment and decree annulling the marriage of the parents does not determine the parentage of a child conceived prior to the marriage, and is not res judicata in a dependency proceeding to determine the paternity of the child. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).

The parentage of a child is not an issue in an annulment action between the parents. Devereaux v. Devereaux, 144 Colo. 31, 354 P.2d 1015 (1960).

Subsection (4) refers only to cases where an annulment proceeding is brought. Valdez v. Shaw, 100 Colo. 101, 66 P.2d 325 (1937); Gainey v. Fleming, 279 F.2d 56 (10th Cir. 1960).

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V. CONFLICT OF LAWS.

Marriages being lawful in other states are recognized as lawful and valid in the state of Colorado. Spencer v. People in Interest of Spencer, 133 Colo. 196, 292 P.2d 971 (1956).

It is the public policy of this state concerning foreign marriages that such marriages are valid if valid where performed. Spencer v. People in Interest of Spencer, 133 Colo. 196, 292 P.2d 971 (1956).

In an action for annulment, the marriage is held to be valid or void, according to the statutes in force and effect in the jurisdiction where the same was entered into, and if, according to these statutes, it is found to be valid, it must be so considered in this jurisdiction. Payne v. Payne, 121 Colo. 212, 214 P.2d 495 (1950).


 

14-10-112 - Separation agreement.

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(1) To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the allocation of parental responsibilities, support, and parenting time of their children.

(2) In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the allocation of parental responsibilities, support, and parenting time of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.

(3) If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement, or the court may make orders for the disposition of property, support, and maintenance.

(4) If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:

(a) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation, and the parties shall be ordered to perform them; or

(b) If the separation agreement provides that its terms shall not be set forth in the decree, the decree shall identify the separation agreement and shall state that the court has found the terms not unconscionable.

(5) Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms.

(6) Except for terms concerning the support, the allocation of decision-making responsibility, or parenting time of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.

 

Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-12. L. 93: (1), (2), and (6) amended, p. 576, § 6, effective July 1. L. 98: (1), (2), and (6) amended, p. 1397, § 39, effective February 1, 1999.

Cross references: (1) For the "Colorado Marital Agreement Act", see part 3 of article 2 of this title.(2) For the legislative declaration contained in the 1993 act amending subsections (1), (2), and (6), see section 1 of chapter 165, Session Laws of Colorado 1993.

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I. General Consideration.
II. Antenuptial Agreements.
III. Unconscionable Agreements.
IV. Incorporation of Agreement into Decree.
V. Modification.
VI. Enforcement.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 505, 506, 508, 515-517, 1108-1121, 1131.

C.J.S. See 27C C.J.S., Divorce, § § 572-578.

Law reviews. For note, "Incorporation by Reference of Agreements Made by the Parties in Divorce Decrees", see 21 Rocky Mt. L. Rev. 420 (1949). For note, "The Paradoxical Separation Agreement", see 21 Rocky Mt. L. Rev. 434 (1949). For comment on Irwin v. Irwin, appearing below, see 35 U. Colo. L. Rev. 440 (1963). For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Mediation and the Colorado Lawyer", see 11 Colo. Law. 2315 (1982). For article, "Dischargeability of Dissolution Debts under the Bankruptcy Code", see 13 Colo. Law. 814 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Seeking Change in Separation Agreement", see 15 Colo. Law. 806 (1986). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 15 Colo. Law. 252 (1987).

Annotator's note. Although § 14-10-112 enacted in 1971 has no similar provision in previous codes and laws of Colorado, relevant cases decided under repealed § § 46-1-1 through 46-1-11, C.R.S. 1963, § § 46-1-1 through 46-1-15, CRS 53, CSA, C. 56, § § 1 through 32, and laws antecedent thereto have been included in the annotations to this section. (But see In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975), concerning the precedential value of such cases.)

Purpose of the separation agreement is to enable divorcing parties to reach an amicable out-of-court settlement of their claims to the property of the other. In re Manzo, 659 P.2d 669 (Colo. 1983).

This section does not preclude a stipulated oral separation agreement; the issue is whether the parties intend to be bound by the terms of an agreement, whether oral or written. In re Chambers, 657 P.2d 458 (Colo. App. 1982).

It has been established that a husband and wife may enter into contracts which settle their differences, and the trial court, while determining division of property accumulated during the marriage, cannot disregard such a contract where it is free from fraud, collusion, compulsion, or unconscionability. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960); Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).

While courts generally adopt stipulations between the parties, relating to alimony, they are not bound to do so. Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).

The agreement must be in all respects fair, reasonable, and just, and it must make sufficient provision for the maintenance of the wife according to the status of the parties. Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).

In agreements of this nature it must be made to appear that the husband has dealt fairly and equitable with his wife in the transaction. Hill v. Hill, 70 Colo. 47, 197 P. 236 (1921); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).

Parents may not by agreement divest the court of continuing jurisdiction over the custodial rights and duties of maintenance of children during their minority. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).

Legal or equitable lien not created by decree. Language of dissolution decree which awarded the house to husband and his mother and ordered husband to execute a promissory note in favor of wife to become due upon the occurrence of one of several possible events did not create a legal or equitable lien on the property in favor of wife where the court did not impose any duty on the husband to pay the note from the proceeds resulting from the sale of the property and did not order the husband to execute a deed of trust or other security instrument to secure payment of the note. Leyden v. Citicorp Indus. Bank, 762 P.2d 689 (Colo. App. 1988).

Applied in Lowery v. Lowery, 195 Colo. 86, 575 P.2d 430 (1978); In re Stedman, 632 P.2d 1048 (Colo. App. 1981).

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II. ANTENUPTIAL AGREEMENTS.

Precedential value of prior decisions. In interpreting the current statute, the courts do not consider that the decisions on separation agreements incorporated in decrees in actions arising under the 1917 act (CRS 53, § 46-1-5) have any precedential value. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

This section is explicitly limited to separation agreements; antenuptial agreements cannot be challenged as unconscionable under this section. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).

Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev'd on other grounds, 653 P.2d 728 (Colo. 1982).

While separation agreements contemplate disposition of property interests which mature because of the marriage status, prenuptial agreements fix the property rights of the parties, regardless of the duration of the marriage. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979); In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).

Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev'd on other grounds, 653 P.2d 728 (Colo. 1982).

Where husband conceded that wife put him through college pursuant to their oral prenuptial agreement, such agreement is not void pursuant to statute of frauds since oral contracts otherwise unenforceable under § 38-10-101, et seq., may substitute for a writing if there is part performance of the oral contract. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).

Standard for review compared with review of antenuptial agreement. The standard applied for court review of the division of property in a separation agreement allows the court more discretion than the standard for court review of the division of property in an antenuptial agreement. In re Manzo, 659 P.2d 669 (Colo. 1983).

Courts reviewing separation agreements prior to entry of a decree of dissolution need more latitude than is allowed for review of antenuptial agreements because of the public policy concern for safeguarding the interests of a spouse whose consent to the agreement may have been obtained under more emotionally stressful circumstances, especially if that spouse is unrepresented by counsel. In re Manzo, 659 P.2d 669 (Colo. 1983).

Where parties to a divorce action had settled all their differences by agreement, and the only duties of husband are those set forth therein, there being no authority for the allowance of attorney's fees to the wife, the court was without authority to award such fees. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962); Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).

The trial court, in determining the pecuniary provision for the wife upon granting a decree of divorce to her, has no right to disregard a previous agreement free from fraud, collusion, or compulsion, and fair to her, entered into between her and her husband in contemplation of a divorce, settling and adjusting all their property rights, including dower, alimony, and support. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).

Where there was a self-operative trust agreement between the parties to a divorce action in settlement of their property rights, such agreement was binding upon the parties, and the court was without jurisdiction to set it aside, no showing of fraud, duress, or mistake appearing. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).

Formerly, an agreement between husband and wife which provided for alimony or property settlement in contemplation of divorce was presumptively fair, and the burden was on the wife to establish the contrary. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1967).

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III. UNCONSCIONABLE AGREEMENTS.

The court is not required to approve blindly an agreement it finds unconscionable. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976).

Provisions of a proposed separation settlement agreement proffered for incorporation into a dissolution decree may be refused as "unconscionable" if the trial court concludes that the agreement is not fair, reasonable, and just. In re Carney, 631 P.2d 1173 (Colo. App. 1981).

Court may determine whether written separation agreement accurately expresses intent and agreement of parties and may exercise its equitable powers where necessary before this section becomes applicable. In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980).

Unconscionability has no relevance to testing of custody agreement. In re Lawson, 44 Colo. App. 105, 608 P.2d 378 (1980).

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: This section 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), aff'd, 195 Colo. 86, 575 P.2d 430 (1978).

Review of provisions before incorporation into dissolution decree. Before a court incorporates property division provisions of a separation agreement into a dissolution decree, it should first review the provisions for fraud, overreaching, concealment of assets, or sharp dealing not consistent with the obligations of marital partners to deal fairly with each other, and then look at the economic circumstances of the parties which result from the agreement, including a determination whether under the totality of the circumstances the property disposition is fair, just and reasonable. In re Manzo, 659 P.2d 669 (Colo. 1983); In re Seely, 689 P.2d 1154 (Colo. App. 1984).

To set aside a property settlement agreement prior to its being incorporated in a dissolution decree, the court need not find that overreaching, inequality of bargaining power or other elements of fraud are present. Rather, before the agreement is set forth in the decree, a court may set aside as unconscionable any agreement that is not "fair, reasonable and just". In re Wigner, 40 Colo. App. 253, 572 P.2d 495 (1977).

Appellate court was not bound by the determination of the trial court applying the unconscionability standard set forth in this section to an agreement, inasmuch as the resolution of that issue would be based upon the interpretation of the document and on uncontroverted facts. In re Lemoine-Hofmann, 827 P.2d 587 (Colo. App. 1992).

Provision for support payment increases based on salary increases allowable. A provision in a separation agreement that the amount of child support payments to be made by husband would increase in proportion to actual increases in husband's salary is allowable and creates no presumption of unconscionability which would violate this section. In re Pratt, 651 P.2d 456 (Colo. App. 1982).

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IV. INCORPORATION OF AGREEMENT INTO DECREE.

Formerly, where the stipulation and property settlement was approved by the courts, but the terms thereof were not set forth in a decree of divorce, the rights of the parties rested upon a contract, and not upon the decree, and were contractual and not decreed rights and obligations. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959); Cawley v. Cawley, 139 Colo. 439, 340 P.2d 122 (1959).

Formerly, where parties to a divorce action entered into a binding contract settling all their differences, the obligation of each to the other stemmed from the contract, and relief, if any, must have been based upon the rights of the parties under the contract. Irwin v. Irwin, 150 Colo. 261, 372 P.2d 440 (1962).

Formerly, where a trial court in a divorce action had no part in determining the property and financial rights of the parties, other than to approve and confirm an agreement purporting to settle all such financial and property rights, the incorporation of such agreement by references in the interlocutory or final decree in the action did not make the terms of such agreement an order or decree of the court, and was not a determination by the court of the respective rights of the parties, but was their voluntary adjustment of their differences, and unless the terms thereof are adopted by the court and fully and specifically set forth in the order or decree, the rights of the parties rest wholly upon the contract and not upon the decree of the court. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959).

Prior to incorporation in decree, separation agreement is contract. Prior to its incorporation in a dissolution decree, a separation agreement is a contract between the parties to a marriage. In re Manzo, 659 P.2d 669 (Colo. 1983).

A reference to a separation agreement and an approval thereof by the court is sufficient to make it a part of the decree. Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970).

The terms of any agreement must have been fully and specifically set forth in a decree. Murphy v. Murphy, 138 Colo. 516, 335 P.2d 280 (1959).

Incorporation by reference allowed. The wording in subsection (4)(a) of this section that "its terms shall be set forth in the decree" does not prohibit incorporation by reference. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

When an agreement has been incorporated by reference into the decree, it is as effectively a part thereof as if recited therein in haec verba. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

So long as it is clear what document is being referred to and that the parties intended for it to be a part of the decree, such incorporation is within the underlying purposes of this section and there is no apparent reason for requiring the recopying of the words into the court order. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

If an executed agreement for a division of property was not incorporated in or made a part of an interlocutory and final decree of divorce, and was not reserved for future action, it was not merged in the divorce proceedings. Cawley v. Cawley, 139 Colo. 439 340 P.2d 122 (1959).

If the property rights and obligations of the parties to a divorce action who had entered into a settlement agreement were to rest upon the court decree, then any such agreement as to those rights should have been fully and specifically set forth in the decree in order that the duties and rights could be definitely ascertained from the decree itself. Taylor v. Taylor, 147 Colo. 140, 362 P.2d 1027 (1961).

Failure to attach prior stipulation as to maintenance of no consequence. Where both parties clearly intended to have a copy of the stipulation regarding maintenance, child support, and division of property, "a part and portion of the decree of dissolution", the absence of any question as to what document is being alluded to, and the agreement by the husband's lawyer, at the hearing for the decree, to the adoption by reference of the stipulation in the earlier separate maintenance case, make the failure to have a copy identified as an exhibit and attached to the decree of no consequence. In re Seymour, 36 Colo. App. 104, 536 P.2d 1172 (1975).

Incorporation of parties' agreement regarding medical insurance and expenses into permanent orders was not beyond the trial court's jurisdiction, and father's failure to pay such expenses could constitute contempt. In re Alverson, 981 P.2d 1123 (Colo. App. 1999).

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V. MODIFICATION.

Formerly, where parties to a divorce action entered into an agreement settling their property rights, which agreement it 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. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955); Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960); Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967); Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970); Watson v. Watson, 29 Colo. App. 449, 485 P.2d 919 (1971); Ingels v. Ingels, 29 Colo. App. 585 487 P.2d 812 (1971).

Modification or revocation of agreement incorporated into decree. Where the parties' property settlement agreement has been incorporated into the decree of dissolution, it is subject to revocation or modification to the same extent as a property division rendered solely by the court. In re Stroud, 631 P.2d 168 (Colo. 1981).

Modification of property division provisions. Once property division provisions of a separation agreement have been incorporated into a dissolution of marriage decree, they may not be set aside or modified unless the conditions of C.R.C.P. 60 are met. In re Seely, 689 P.2d 1154 (Colo. App. 1984).

When court has power to modify maintenance. A trial court has authority to test a settlement agreement on the standard of present unconscionability and for possible modification of maintenance under two circumstances: if the agreement or the decree reserves that power to the trial court, or, if the agreement and the decree are silent on the power to modify. In re Thompson, 640 P.2d 279 (Colo. App. 1982).

The court retained jurisdiction to modify the separation agreement where the agreement specifically provided that the issue of retirement benefits obtained as a result of the husband's military service shall remain open and modifiable. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).

Restriction of court's jurisdiction to modify must be unequivocal. While subsection (6) permits the parties to restrict the jurisdiction of the court to modify the maintenance terms of a settlement agreement, such a restriction must specifically and unequivocally preclude modification. In re Rother, 651 P.2d 457 (Colo. App. 1982).

Where maintenance provision not modifiable. Where there was no reservation in the trial court of the power to modify a maintenance provision, the court cannot do so later. In re Thompson, 640 P.2d 279 (Colo. App. 1982).

The waiver of the right to seek modification in and of itself could well be the consideration for a concession in the amount or duration of maintenance, or in the property received by a party. Thus, to permit reconsideration of the amount of maintenance contracted for, without also reopening the property division, would be inequitable. In re Thompson, 640 P.2d 279 (Colo. App. 1982).

Modification by parties' agreement not reservation to court of power. The fact that an agreement allows modification by agreement of the parties is not a reservation to the court of the power to modify; rather, it is a limitation on the court's power. In re Thompson, 640 P.2d 279 (Colo. App. 1982).

Only unequivocal language in the terms of the settlement precludes the court from modifying the support provisions. No such language existed where the settlement provided that the period for payment of maintenance could be extended by further order of the court. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).

Where the parties' dissolution decree incorporated a separation agreement that stated that the husband's retirement benefits remained open and modifiable, the trial court had the authority to divide the husband's military retirement pension. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).

Modification of agreement permitted upon showing of fraud or overreaching. Where the terms of a divorce decree specifically preclude modification, without the written consent of the parties, a court can modify the agreement only upon a showing of fraud or overreaching. In re Cohen, 44 Colo. App. 200, 610 P.2d 1092 (1980).

Where separation agreement and alimony not modifiable. 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 the agreement or the alimony provisions. Burleson v. District Court, 196 Colo. 455, 586 P.2d 665 (1978).

Waiver clause in separation agreement is binding to bar pursuit of further spousal maintenance since promised maintenance payments were actually made despite technical default regarding the method of payment where wife acquiesced to such manner and there was no showing of fraud, collusion, or compulsion. In re Vincent, 709 P.2d 959 (Colo. App. 1985).

Modification of parenting time and the related non-modification of child support agreement was made an order of court and so constituted an amendment to the original order and therefore are no longer enforceable as contract terms because they were made an order of court. In re Rosenthal, 903 P.2d 1174 (Colo. App. 1995).

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VI. ENFORCEMENT.

Property lien to enforce agreement. A court may impose a lien on a party's property in order to enforce an agreement where the party has threatened to dispose of the property and put himself beyond the court's jurisdiction. In re Valley, 633 P.2d 1104 (Colo. App. 1981).

Separation agreement is incorporated into and superseded by decree and, therefore, governed by remedies available for the enforcement of a judgment. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).


 

14-10-113 - Disposition of property.

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(1) In a proceeding for dissolution of marriage or in a proceeding for legal separation or in a proceeding for disposition of property following the previous dissolution of marriage by a court which at the time of the prior dissolution of the marriage lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, subject to the provisions of subsection (7) of this section, shall set apart to each spouse his or her property and shall divide the marital property, without regard to marital misconduct, in such proportions as the court deems just after considering all relevant factors including:

(a) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(b) The value of the property set apart to each spouse;

(c) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time; and

(d) Any increases or decreases in the value of the separate property of the spouse during the marriage or the depletion of the separate property for marital purposes.

(2) For purposes of this article only, and subject to the provisions of subsection (7) of this section, "marital property" means all property acquired by either spouse subsequent to the marriage except:

(a) Property acquired by gift, bequest, devise, or descent;

(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

(c) Property acquired by a spouse after a decree of legal separation; and

(d) Property excluded by valid agreement of the parties.

(3) Subject to the provisions of subsection (7) of this section, all property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property described in this subsection (3) is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.

(4) Subject to the provisions of subsection (7) of this section, an asset of a spouse acquired prior to the marriage or in accordance with subsection (2) (a) or (2) (b) of this section shall be considered as marital property, for purposes of this article only, to the extent that its present value exceeds its value at the time of the marriage or at the time of acquisition if acquired after the marriage.

(5) For purposes of this section only, property shall be valued as of the date of the decree or as of the date of the hearing on disposition of property if such hearing precedes the date of the decree.

(6) (a) (I) Notwithstanding any anti-assignment, anti-alienation, or other provision of law to the contrary, all retirement benefits of any nature for public employees from a plan described in section 414 (p) of the federal "Internal Revenue Code of 1986", as amended, that is established pursuant to Colorado law shall be, in all actions for dissolution of marriage, legal separation, and declaration of invalidity of marriage, divisible directly by the plan upon written agreement of the parties to such an action pursuant to paragraph (c) of this subsection (6).

(II) The provisions of this subsection (6) shall apply to all dissolution of marriage, legal separation, and declaration of invalidity of marriage actions filed on or after January 1, 1997, and all dissolution of marriage, legal separation, or declaration of invalidity of marriage actions filed prior to January 1, 1997, in which the court did not enter a final property division order concerning the parties' public employee retirement benefits prior to January 1, 1997.

(b) As used in this subsection (6), unless the context otherwise requires:

(I) "Alternate payee" means a party to a dissolution of marriage, legal separation, or declaration of invalidity action who is not the participant of the public employee retirement plan divided or to be divided but who is married to or was married to the participant and who is to receive, is receiving, or has received all or a portion of the participant's retirement benefit by means of a written agreement as described in paragraph (c) of this subsection (6).

(II) "Defined benefit plan" means a retirement plan that is not a defined contribution plan and that usually provides benefits as a percentage of the participant's highest average salary, based on the plan's benefit formula and the participant's age and service credit at the time of retirement.

(III) "Defined contribution plan" means a retirement plan that provides for an individual retirement account for each participant and the benefits of which are based solely on the amount contributed to the participant's account and that includes any income, expenses, gains, losses, or forfeitures of accounts of other participants that may be allocated to the participant's account.

(IV) "Participant" means the person who is an active, inactive, or retired member of the public employee retirement plan.

(c) (I) The parties may enter into a marital agreement pursuant to part 3 of article 2 of this title or a separation agreement pursuant to section 14-10-112 concerning the division of a public employee retirement benefit between the parties pursuant to a written agreement. The parties shall submit such written agreement to the plan administrator within ninety days after entry of the decree and the permanent orders regarding property distribution in a proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage.

(II) A written agreement dividing a public employee retirement benefit shall:

(A) Specify the full legal name of the retirement plan or plans to which it applies;

(B) Specify the name, social security number, and last-known mailing address of the participant and the alternate payee as well as the alternate payee's relationship to the participant;

(C) For an agreement concerning a defined benefit plan, specify the distribution method, as described in subparagraph (III) of this paragraph (c), subject, if the plan permits, to benefit adjustments payable at the same time and in the same manner as any benefit adjustments applied to the participant's distribution.

(D) For an agreement concerning a defined contribution plan, specify the alternate payee's portion of the participant's account as a fixed lump-sum amount, or as a percentage, in either case, as of a specified date, from specific accounts of the participant and, unless the plan adopts rules and regulations pursuant to paragraph (d) of this subsection (6) permitting the plan to retain the alternate payee's portion of the participant's account, require that distribution to the alternate payee be made within one hundred twenty days after a certified court order approving the agreement has been submitted to and received by the plan;

(E) Not provide for payments to the alternate payee or to the participant for which he or she would not otherwise be eligible if there were no dissolution of marriage, legal separation, or declaration of invalidity action pending;

(F) For an agreement concerning a defined benefit plan, not require the plan to pay the alternate payee prior to the date payments commence to the participant or prior to the participant attaining age sixty-five or actual retirement date, whichever date is earlier, or at such later date as the parties may otherwise agree in writing;

(G) For an agreement concerning a defined benefit plan, provide that the alternate payee's rights to payments terminate upon the involuntary termination of benefits payable to the participant or upon the death of the alternate payee, whichever occurs first, unless the parties agree to elect, or have already elected, a benefit option under the plan that provides for a cobeneficiary benefit to the alternate payee;

(H) Provide that the manner of payment shall be in a form or type permissible under the plan. The agreement shall not require through this subsection (6) the payment of a benefit, benefit amount, or distribution option not otherwise set out in the plan document or statute.

(I) Not require the plan to pay benefits that are already required to be paid to another alternate payee or are already subject to an assignment or lien;

(J) Specify that it shall apply to successor plans;

(K) Comply with any rules or procedures promulgated pursuant to paragraph (d) of this subsection (6); and

(L) Specify that, once approved by the court, the order approving the agreement shall be certified by the clerk of the court and submitted to and received by the retirement plan at least thirty days before the plan may make its first payment.

(III) The written agreement between the parties described in subparagraph (II) of this paragraph (c) shall contain only one method or formula to be applied to divide the defined benefit plan. For purposes of sub-subparagraph (C) of subparagraph (II) of this paragraph (c), the parties may select any one of the following methods by which to divide the defined benefit plan:

(A) A fixed monetary amount;

(B) A fixed percentage of the payment to the participant;

(C) The time-rule formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan at the time of the participant's retirement as determined by the plan, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment to the participant at the date of retirement;

(D) A formula determined by dividing the number of months of service credit acquired under the plan during the marriage as set forth in the court's order by the number of months of service credit in such plan as of the date of the decree as determined by the plan, regardless of when the participant is expected to retire, which quotient shall be multiplied by a percentage specified in the court's order, and the product thereof shall be further multiplied by the amount of the payment the participant would be entitled to receive as if the participant were to retire and receive an unreduced benefit on the date of the decree; or

(E) Any other method or formula mutually agreed upon by the parties that specifies a dollar amount or percentage payable to the alternate payee.

(d) The trustees or the administrator of each retirement plan may promulgate rules or procedures governing the implementation of this subsection (6) with respect to public employee retirement plans that they administer. Such rules or procedures may include the requirement that a standardized form be used by the parties and the court for an order approving the parties' agreement to be effective as well as other provisions consistent with the purpose of this subsection (6).

(e) Compliance with the provisions of this subsection (6) by a public employee retirement plan shall not subject the plan to any portions of the federal "Employee Retirement Income Security Act of 1974", as amended, that do not otherwise affect governmental plans generally. Any plan that reasonably complies with an order approving an agreement entered into pursuant to this subsection (6) shall be relieved of liability for payments made to the parties subject to such order.

(f) A court shall have no jurisdiction to enter an order dividing a public employee retirement benefit except upon written agreement of the parties pursuant to this subsection (6). A court shall have no jurisdiction to modify an order approving a written agreement of the parties dividing a public employee retirement benefit unless the parties have agreed in writing to the modification. A court may retain jurisdiction to supervise the implementation of the order dividing the retirement benefits.

(7) (a) For purposes of subsections (1) to (4) of this section only, except with respect to gifts of nonbusiness tangible personal property, gifts from one spouse to another, whether in trust or not, shall be presumed to be marital property and not separate property. This presumption may be rebutted by clear and convincing evidence.

(b) For purposes of subsections (1) to (4) of this section only, "property" and "an asset of a spouse" shall not include any interest a party may have as an heir at law of a living person or any interest under any donative third party instrument which is amendable or revocable, including but not limited to third-party wills, revocable trusts, life insurance, and retirement benefit instruments, nor shall any such interests be considered as an economic circumstance or other factor.

(c) (I) The provisions of this subsection (7) shall apply to all causes of action filed on or after July 1, 2002. The provisions of this subsection (7) shall also apply to all causes of action filed before said date in which a final property disposition order concerning matters affected by this subsection (7) was not entered prior to July 1, 2002.

(II) For purposes of this paragraph (c), "final property disposition order" means a property disposition order for which the time to appeal has expired or for which all pending appeals have been finally concluded.


 

Source: L. 71: R&RE, p. 525, § 1. C.R.S. 1963: § 46-1-13. L. 73: pp. 553, 555, § § 6, 7, 12. L. 75: IP(1) amended, p. 210, § 25, effective July 16. L. 96: (6) added, p. 1457, § 1, effective January 1, 1997. L. 97: (6)(a) amended, p. 100, § 1, effective March 24. L. 98: (6)(c)(I) and (6)(c)(II)(C) amended and (6)(c)(III) added, p. 355, § 1, effective August 5; (1)(c) amended, p. 1397, § 40, effective February 1, 1999. L. 99: (6)(c)(I), (6)(c)(II)(L), and (6)(f) amended, p.46, § 1, effective March 15. L. 2002: (6) (a) (I) amended, p. 138, § 1, effective March 27; IP(1), IP(2), (3), and (4) amended and (7) added, p. 1054, § 1, effective June 1.

Cross references: For the federal "Employee Retirement Income Security Act of 1974", see 29 U.S.C. sec. 1001 et seq.

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Analysis

I. General Consideration.
II. Division of Property.

A. In General.

B. Definition of Property.

C. Discretion of Court.

D. Antenuptial Agreements.

E. Separate Property.

F. Marital Property.

G. After-acquired Property.

III. Valuation of Property.
IV. Scope of Review.
V. Enforcement.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 497-599.

C.J.S. See 27B C.J.S., Divorce, § § 508-571.

Law reviews. For note, "Effects of Reconciliation on Separation Agreements in Colorado", see 51 U. Colo. L. Rev. 399 (1980). For article, "The Economy: Its Effects on Family Law", see 11 Colo. Law. 97 (1982). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Marital Property", see 13 Colo. Law. 1209 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Division of Pension Benefits in Divorce Proceedings", see 14 Colo. Law. 378 (1985). For article, "Taxation", which discusses a recent Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Cohabitation Agreements in Colorado", see 15 Colo. Law. 979 (1986). For article, "Common Law Marriage in Colorado", see 16 Colo. Law. 252 (1987). For article, "Division of Civil Service Retirement Benefits in Divorce", see 17 Colo. Law. 643 (1988). For article, "Standards for Tracing Marital Property Back to Non-Marital Property", see 17 Colo. Law. 853 (1988). For article, "Determining Benefits for Former Spouses of Military Personnel", see 19 Colo. Law. 1073 (1990). For article, "Classifying Income, Rents, and Profits from Separate Property", see 24 Colo. Law. 1303 (1994). For article, "Marital or Separate Property: An Overview for Practitioners", see 24 Colo. Law. 571 (1995). For article, "Employee Stock Options and Restricted Shares: Determining and Dividing the Marital Property", see 25 Colo. 87 (October 1996). For article, "Valuing Business Goodwill in a Divorce", see 26 Colo. Law. 53 (April 1997). For article, "Establishing Separate Property Through Asset Tracing After Burford", see 28 Colo. Law. 55 (January 1999). For article, "How Income Taxes Affect Property Settlements", see 29 Colo. Law. 55 (January 2000). For article, "Divorce Considerations Relevant to an Estate Planning Practice", see 29 Colo. Law. 53 (February 2000). For article, "Retirement Benefits in Divorce: Mixing, Matching, and Offsetting", see 29 Colo. Law. 67 (June 2000). For article, "Balanson: Drafting Trust to Deflect the Spousal Creditor", see 30 Colo. Law. 131 (October 2001).

Annotator's note. Since § 14-10-113 is similar to repealed § 46-1-5(2), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations, and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Division of property is mandatory under this section, whereas an award of maintenance is discretionary under § 14-10-114. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

This statute is a legislative recognition of preexisting Colorado law. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).

Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev'd on other grounds, 653 P.2d 728 (Colo. 1982); In re Kiefer, 738 P.2d 54 (Colo. App. 1987).

Equitable lien created by decree of dissolution. Where wife was ordered to quitclaim her undivided one-third interest in the family home to husband and his mother in exchange for a promissory note representing the value of such interest, an equitable lien to prevent unjust enrichment was imposed on the property because repayment of the note was conditioned in part on events involving disposition of the property. Leyden v. Citicorp Indus. Bank, 782 P.2d 6 (Colo. 1989).

The needs of the children are of paramount importance; therefore, statutory provisions may not be modified by agreement if to do so would affect the rights of the child whom the statute is designed to protect. In re Miller, 790 P.2d 890 (Colo. App. 1990).

Attorney fees are not a non-challengeable marital debt under this section. In re Rieger, 827 P.2d 625 (Colo. App. 1992).

Applied in In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); Mayer v. District Court, 198 Colo. 199, 597 P.2d 577 (1979); In re Engelman, 43 Colo. App. 531, 605 P.2d 490 (1979); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Carney, 631 P.2d 1173 (Colo. 1981); In re Stewart, 632 P.2d 287 (Colo. App. 1981); In re Everhart, 636 P.2d 1321 (Colo. App. 1981); In re Manzo, 659 P.2d 669 (Colo. 1983).

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II. DIVISION OF PROPERTY.

A. In General.

Law reviews. For article, "Property or Expectancy: The Division of Trust Assets at Dissolution of Marriage", see 30 Colo. Law. 63 (February 2001).

This statute makes property division mandatory. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Where the trial court has the necessary jurisdiction, over not only the subject matter but the persons as well, it is required to divide the marital property in accordance with this section . In re Quay, 647 P.2d 693 (Colo. App. 1982).

Language of subsection (1)(c) is not mandatory. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).

Colorado is not a community property state. In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).

The statutory mandate to distribute property equitably does not require equality. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980); In re Weiss, 695 P.2d 778 (Colo. App. 1984); In re Fenimore, 782 P.2d 872 (Colo. App. 1989); In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied 846 P.2d 189 (Colo. 1993).

The parties need not be accorded equal shares in the marital estate. In re Boyd, 643 P.2d 804 (Colo. App. 1982).

It has been held repeatedly that in matters of division of property the trial court is imbued with broad discretion, and that the mandate to distribute property equitably does not require equality. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

Facially disproportionate division of property not inequitable where economic circumstances of each spouse were properly considered. In re Sorensen, 679 P.2d 612 (Colo. App. 1984).

There is no requirement that the court divide property with precise equality in order to achieve an equitable division. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

Increases in separate property or marital property do not mandate that such property be divided equally, nor does it necessarily preclude the award of substantially all of such property to only one spouse. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

A trial judge cannot in all circumstances evaluate marital property with razor-sharp exactness so that each party's share has a precise monetary value. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

The distribution of marital property must be just and equitable, but need not be necessarily equal. In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Jaeger, 883 P.2d 577 (Colo. App. 1994); In re Goldin, 923 P.2d 376 (Colo. App. 1996); In re Stumpf, 932 P.2d 845 (Colo. App. 1996); In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

This section authorizes the trial court to make an equitable and just division of the property of persons involved in divorce proceedings as that property is shown to exist at the time of the order entered with regard thereto. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Court may not become a surrogate attorney for party who has chosen not to appear before the court in order to reach an equitable division of marital property. Therefore, trial court did not abuse its discretion in failing to elicit evidence concerning husband's current earnings, the use husband made of funds he withdrew from the joint bank account, or the classification of certain property as separate or marital. In re Eisenhuth, 976 P.2d 896 (Colo. App. 1999).

The public policies to be furthered under this act include dividing of assets equitably and mitigating the harm to spouses and children. These policies take precedence over any contract arguments that may be raised by either spouse. Thus, the trial court was correct in refusing husband's indemnification argument and in interpreting the divorce decree as requiring the husband to compensate the wife for the fair market value of business property apportioned to her in the equitable distribution. In re Plesich, 881 P.2d 379 (Colo. App. 1994).

It is not objectionable that an exact dollar amount of the husband's contribution to assets cannot be determined from the testimony, as it is not a prerequisite to a fair and equitable division of property that such distribution be made in exact proportion to contribution of funds. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

There is no mathematical formula for establishing a just and equitable property settlement, or alimony, or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

It is improper for the court to continue a joint or common tenancy between divorced spouses in marital property. Rather, in dividing the marital property, the court should leave to each party a definable portion of ownership. In re Paul, 821 P.2d 925 (Colo. App. 1991).

In dividing marital property, specific findings regarding value of assets are not required as long as basis for decision of trial court is apparent from its findings. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

This issue of property division in a divorce action is not one of marital fault, but whether the wife is entitled thereto by reason of having contributed to the accumulation or preservation of the assets sought to be divided, and whether her conduct was such as to justify her sharing in a division of such property. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

Formerly, it was only one of the elements to be taken into consideration, and in the absence of moral delinquency or a complete disregard of the marriage vows, individual fault should not have acted as an obstacle to an equitable division of property. Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).

Maintenance and property settlement must be considered together to achieve just result in dissolution proceedings. If an order dividing property cannot stand, the provision for maintenance must also be set aside to permit the trial court to consider both matters in relation to each other upon remand. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).

Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981); In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Fact that the parties waived maintenance has no bearing on the classification of stock shares as marital property; thus, wife's argument that because the stock purchase was made through a payroll deduction it constituted her compensation and could not be divided as property or considered maintenance, since both parties waived maintenance, was misplaced. In re Huston, 967 P.2d 181 (Colo. App. 1998).

There is a qualitative difference between a maintenance award and a division of property. A property division is final and non-modifiable absent conditions justifying relief from judgment. In re Wells, 833 P.2d 797 (Colo. App. 1991).

Statutory criteria for dividing property is general in nature, and the trial court has wide discretion in dividing marital property to accomplish a just result. In re Jackson, 698 P.2d 1347 (Colo. 1985).

Division of property must be based on the situation of the parties at the time of the decree rather than that at the time of their marriage. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946); Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Subsection (1)(c) requires the trial court to consider the economic circumstances of the respective spouses at the time of the hearing relating to the division of marital property. Therefore, the trial court erred as a matter of law in considering the economic circumstances of the parties at the time of the dissolution, rather than at the time of the permanent orders, which occurred in the year following the entry of the dissolution. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Every property division action depends on the particular facts of each case. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954).

Many factors enter into the determination of what division of property shall be made in the event of a divorce, among these are the value of the estate to be divided; the financial condition of the parties; the ability of each spouse to earn money; how the property was acquired; the age and status of the parties, and all pertinent facts and circumstances bearing on the question. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Larrabee v. Larrabee, 31 Colo. App. 493 504 P.2d 358 (1972).

Spouse's earning capabilities are properly part of the "economic circumstances" the court must consider in compliance with subsection (1). In re Faulkner, 652 P.2d 572 (Colo. 1982).

Contribution to an increase in separate property is an important factor, but not the sole factor to consider in dividing such property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

Value of husband's interest in corporation considered in determining division of property. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

Factors such as occupational experience, coupled with education, training, and business background should also be considered in determining what division should be made of property. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

The award of rights in property to the wife was only another factor in the determination of the interests of the parties in the realty which they owned. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

That the husband had transferred his property to his brother with fraudulent intent, and that it was reasonable to presume that he would not deal fairly, frankly, and openly with his wife and child, were facts properly to be considered by the court in making division of property. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

Where the division of property was not in the nature of alimony or support money for the minor children, but was an equitable division based upon the fact that the wife, during marriage, in addition to the usual household duties, performed services that contributed to the husband's business advantage, a division of property could be ordered in addition to alimony . Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

The fact that much of the husband's property came by inheritance did not preclude the court from making an equitable division of property between a husband and a wife who had performed services contributing to her husband's business advantage, but was only one of many facts to be considered by the court. Shapiro v. Shapiro, 115 Colo. 505, 176 P.2d 363 (1946).

Inherited property was formerly not per se excluded from consideration by the court in making a determination of the property rights of the parties. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

Property division could be made even where a wife is not entitled to alimony. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).

It is not a necessary prerequisite that a wife show that she has contributed by funds or efforts to the acquiring of any specific property awarded her. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

But whether the wife has contributed to or in some manner aided in the accumulation or preservation of the assets sought to be divided must be ascertained. Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966).

Where by her services beyond the usual duties of a homemaker, a wife contributes either funds or services which enable the husband to increase his property holdings, or to preserve those already held, the wife is entitled upon divorce to an equitable award of money or property as may be justified by the circumstances of the parties. Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958).

The pecuniary resources of the husband were not to be regarded as a basis for a division of property, which was not the purpose of an allowance for the support of the wife, but they had a bearing upon the condition in life of the parties and thus upon the necessities of the wife, for as had been recognized in considering the liability of a husband for necessaries supplied to his wife, the term "necessaries" in this connection was not confined to articles of food or clothing required to sustain life, but had a much broader meaning and included such articles for use by a wife as were suitable to maintain her and the family according to the property and condition in life of her husband. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

Where a wife advanced $8000 from her own funds to her husband to purchase property, a finding that the husband was indebted to the wife in such amount and that she should have had a lien on property to secure repayment thereof, being amply supported by the evidence, was not erroneous. Flor v. Flor, 148 Colo. 514, 366 P.2d 664 (1961).

Where a wife in outburst of emotion, damaged or destroyed husband's personal effects, it was not error to award husband value thereof against the wife. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).

It was not a prerequisite to a fair and equitable division of property that the wife must show that she had contributed by funds or effort to the acquisition of the specific property awarded to her. Schrader v. Schrader, 156 Colo. 521, 400 P.2d 675 (1965).

Where the husband was the owner of a minority stock interest and was not the owner of the home, piercing the corporate veil to determine the true value of an interest in a closely held corporation did not allow for an order that part of the corporation's property should be distributed to or used by a legal stranger, and the wife was not entitled to corporate assets, but to a sum of money, or possibly even shares of stock, based upon the fair value of her husband's interest. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

A dissolution of a marriage must be effective before any court had power to decree a division of property between a husband and wife. McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959); Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).

Otherwise, the parties would still be married, and while that status continues there is always the possibility of a termination of the separation, and a court is therefore without power to finally determine the property rights of the parties. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

This section does not prohibit a hearing on the parties' property settlement before the entry of the divorce decree, but merely provides that at the time of the issuance of the divorce decree, or thereafter, on application the court may make orders relating to property divisions. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

Personal service upon nonresident is not prerequisite to division of property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Jurisdiction over petitioner extends to property in state. Where petitioner has possession of property located in Colorado, the property being specifically described in the petition as an asset subject to disposition, the court acquires control of the property by virtue of its jurisdiction over petitioner, and the court thereby obtains jurisdiction to determine the appropriate disposition of that property. In re Ramsey, 34 Colo. App. 338, 526 P.2d 319 (1974).

Where the trial court has jurisdiction to divide property of the parties by virtue of the fact that the property was located in Colorado, it can properly adjudicate the rights of the parties with respect to property owned by them in Colorado. In re Wilson, 653 P.2d 85 (Colo. App. 1982).

The trial court did not exceed its jurisdiction in requiring the husband to execute and deliver deeds conveying his interest in the property to the wife, because although it has generally been held that a divorce court in one state does not have the power directly to affect, by means of its decree, the title to real property situated in another state, where the decree itself does not operate as a conveyance, but was wholly an in personam decree requiring that a party under the court's jurisdiction execute the conveyance, the court did not exceed its jurisdiction. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

"Date of the hearing". Where the hearing on disposition of property takes more than one day and there is a substantial interval between hearing days, the "date of the hearing" referred to in subsection (5) of this section is the day when the last evidence was presented on this matter. In re Femmer, 39 Colo. App. 277, 568 P.2d 81 (1977).

Where the trial court had jurisdiction to divide property at the time of entry of a final decree of divorce, but did not do so, nor then reserve the matter for further consideration, it lost jurisdiction to thereafter make a valid division of such property. Triebelhorn v. Turzanski, 149 Colo. 558, 370 P.2d 757 (1962).

Because former § 46-1-5(2), C.R.S. 1963, did not contemplate or authorize the court to exercise continuing supervisory powers over the management of the property subject to division. Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).

Former § 46-1-5(2), C.R.S. 1963, required that an order dividing the property of the parties to a divorce proceeding be made either at the time the divorce decree was issued, or within such "reasonable time thereafter as may be set by the court at the time of the issuance of said divorce decree". Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971).

Where the trial court retained the jurisdiction to award such alimony as may be just upon a proper showing, in no way altered the finality of a portion of the decree which determined the rights and interests of the parties in the real estate. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

The trial court retained jurisdiction of the controversy concerning the property settlement between these divorced parties as to matters affecting their property rights following the death of the husband. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).

Trust where wife settlor and sole income beneficiary. Where wife had established a trust with herself as sole income beneficiary, the court had jurisdiction, in a subsequent divorce action, to order the trustee to make payments from the trust to the husband. In re Kaladic v. Kaladic, 41 Colo. App. 419, 589 P.2d 502 (1978).

The trial court in the absence of agreement between the parties to the divorce action could not, over the objection of the wife, order that her share in the property division be impressed with a trust. Ferguson v. Olmsted, 168 Colo. 374, 451 P.2d 746 (1969).

Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial court's 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's fees. In re Jones, 627 P.2d 248 (Colo. 1981).

Payment of interest on spouse's equity in house. The wife may be required to pay interest on the husband's share of the equity in the house which was awarded to the wife, for the period between the dissolution of marriage and payment of the equity. In re Garcia, 638 P.2d 848 (Colo. App. 1981).

Interest on portion of sale price of marital residence representing husband's share is to be calculated from date specified in decree that payment of such amount become due, not date of sale. In re Schutte, 721 P.2d 160 (Colo. App. 1986).

Transfer is not taxable event. When, under this section, a property settlement agreement is entered into providing for a transfer of property from husband to wife in acknowledgment of the wife's contribution to the accumulation of the marital estate, or a decree of the divorce court requires such transfer because of wife's contributions to the accumulation of the family estate, and the transfer is not made in satisfaction of the husband's obligation for support, the transfer is not a taxable event giving rise to capital gains tax liability for purposes of federal income taxation. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975).

Acts of depletion of marital estate are relevant considerations in making a division of property and not an imputation of marital misconduct on the part of a spouse. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Spouse may be required to apply future earnings against present marital debts. Subsection (2)(c) is not violated solely because the award forces the husband to apply future earnings to retire present debts of the marital estate. In re Faulkner, 652 P.2d 572 (Colo. 1982).

A spouse's contribution to the professional education and career of the other spouse must be considered in the distribution of property pursuant to this section. In re Speirs, 956 P.2d 622 (Colo. App. 1997).

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B. Definition of Property.

This section does not define "property" but merely specifies that the "marital property" is to be divided "in such proportions as the court deems just". In re Ellis, 36 Colo. App. 234, 538 P.2d 1347 (1975), aff'd, 191 Colo. 317, 552 P.2d 506 (1976).

The legislature intended the term "property" to be broadly inclusive, as indicated by its use of the qualifying adjective "all" in subsection (2) of this section. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

There are necessary limits upon what may be considered "property", and the concept as used by the general assembly is other than that usually understood to be embodied within the term. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

An insurance policy with no cash surrender value does not represent any asset proper for consideration on the theory that it is "property" which is subject to equitable division between the parties. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Degree is not property. Where a spouse provides financial support while the other spouse acquires a degree, the degree is not considered property. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 (Colo. 1987).

At best, education is an intangible property right, the value of which, because of its character, cannot have a monetary value placed upon it for division between spouses. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987).

And is not subject to division under this section. Although a litigant's education is a factor to be considered, among many others, in arriving at an equitable property division and in determining matters of maintenance and child support, it is not property subject to division under this section. In re Graham, 38 Colo. App. 130, 555 P.2d 527 (1976), aff'd, 194 Colo. 429, 574 P.2d 75 (1978); In re Olar, 747 P.2d 676 (Colo. 1987); In re Speirs, 956 P.2d 622 (Colo. App. 1997).

Husband's beneficial interest in discretionary trust is not "property" subject to division as such under this section. In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).

Husband's rights in a discretionary trust are to be considered by the court as any other "economic circumstance" of the husband in determining a just division of the marital property pursuant to subsection (1)(c) and as a "relevant factor" in making an award of maintenance under § 14-10-114 (2). In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).

Wife's interest in family trust constitutes "property" and is not a "mere expectancy", despite the fact that wife's father must pay the entire net income from the trust to himself during his lifetime and has the discretion to invade the corpus for his own support, care, and maintenance. Because the trust was created during the marriage, wife's interest constitutes a gift that is excepted from the definition of marital property, but appreciation on wife's interest in the trust during the course of the marriage does constitute marital property. In re Balanson, 25 P.3d 28 (Colo. 2001).

Court found husband's vested remainder interest in his father's trust to be a property interest, where father possessed the power to revoke the trust during his lifetime but died without exercising that power. Husband's remainder interest in his father's trust was, therefore, subject to depletion only by exercise of the trustee's right to invade the corpus of the trust for the benefit of husband's mother, which right did not convert husband's vested remainder property interest into a mere expectancy. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

Court found husband's vested remainder interest in his mother's trust to be a property interest, even though the mother, still living at the time of the permanent orders, had the power to revoke the trust during her lifetime. The mother's exercise of her right to revoke is a condition subsequent, and unless the event occurs, husband's interest remains vested. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

A life insurance policy lacking cash surrender value is not "property" since it has not objective, tangible, or vested value that can be divided. McGovern v. Broadstreet, 720 P.2d 589 (Colo. App. 1985).

Discretionary trust corpus cannot be considered the separate property of a beneficiary for purposes of division of property. This is because the beneficiary of such trust has no contractual or enforceable right to income or principal from the trust, cannot force any action by the trustee, cannot assign an interest in the trust, and because such interest cannot be reached by either party's creditors. In re Jones, 812 P.2d 1152 (Colo. 1991).

Income received by the wife from the discretionary trust during the marriage is properly considered a gift and thus not divisible pursuant to subsection (2)(a). In re Jones, 812 P.2d 1152 (Colo. 1991).

Wife's expectancy interest in a discretionary trust should be considered an economic circumstance pursuant to subsection (1)(c). In re Jones, 812 P.2d 1152 (Colo. 1991).

Wife's future anticipated interest in German "social security" benefits is an economic circumstance that can be considered pursuant to subsection (1)(c) in the equitable division of the marital estate. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

Trial court did not err in concluding that an irrevocable trust of which wife was beneficiary but over which wife had no control over the principal or the income and from which wife had no right to demand or request distributions was not marital property but an "economic circumstance" to be considered in arriving at an equitable property division . In re Pooley, 996 P.2d 230 (Colo. App. 1998).

Vested and matured military retirement pay accrued during all or part of a marriage constitutes marital property subject to equitable distribution in a marriage proceeding. In re Gallo, 752 P.2d 47 (Colo. 1988).

The key to an equitable distribution is fairness, not mathematical precision. Two possible methods of valuation are the present cash value method and the reserve jurisdiction method. In re Gallo, 752 P.2d 47 (Colo. 1988).

The rule that military retirement pay is marital property subject to equitable distribution in a marriage proceeding should be applied prospectively only. In re Wolford, 789 P.2d 459 (Colo. App. 1989).

Trial court, which had personal jurisdiction over husband but lacked the authority to divide the husband's military pension as marital property, did not retain jurisdiction to divide the pension at a later date. Even though final decree provided that trial court had continuing jurisdiction over the action and that the wife would remain entitled to any and all military benefits, the court did not have the authority to divide military pension as a result of subsequent case law declaring such pensions to be marital property. Language in final decree refers only to the court's continuing authority to divide property as such court had on the date of the final decree. In re Booker, 833 P.2d 734 (Colo. 1992).

Federal act specifying whether the court has jurisdiction over a military member's pension preempts state rules of procedure governing jurisdiction. In re Booker, 833 P.2d 734 (Colo. 1992).

Trial court did not err in its conclusion that military voluntary separation incentive payments constitute marital property subject to distribution. Compensation that is deferred until after the dissolution of marriage, but fully earned during the marriage, is marital property. In re Shevlin, 903 P.2d 1227 (Colo. App. 1995).

Cash received during the marriage pursuant to an employment contract which provides for payments in installments in advance of work is cash on hand and therefore marital property subject to division and not future income. In re Anderson, 811 P.2d 419 (Colo. App. 1990).

Compensation deferred until after the dissolution, but earned fully during the marriage, is marital property. Wife's performance award for her performance as an employee during the marriage was marital property, subject to equitable division. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Although the interest of the policy owner of a life insurance policy constitutes marital property, the interest of the named beneficiary is only an expectancy and vests no present property interest in the beneficiary. Gorman-English v. Estate of English, 849 P.2d 840 (Colo. App. 1992).

A life insurance policy lacking cash surrender value is not "property" since it has no objective, tangible, or vested value that can be divided in a dissolution action. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Spouse's disability pension payments do not constitute marital property and are not subject to distribution in a dissolution of marriage action. Such a distribution would contravene the legislative intent that only the beneficiary receive the disability benefits. In re Peterson, 870 P.2d 630 (Colo. App. 1994).

A stock option that is not vested does not constitute property. Only a vested stock option is "property" subjection to a determination of whether it was granted in consideration of past or future services for purpose of ascertaining it's marital or separate nature. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001).

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C. Discretion of Court.

The division of property in a divorce action is a matter within the sound discretion of the trial court, and its judgment will not be disturbed on review unless it is shown that the division made was an abuse of discretion. Granato v. Granato, 130 Colo. 439, 277 P.2d 236 (1954); Todd v. Todd, 133 Colo. 1, 291 P.2d 386 (1955); Britt v. Britt, 137 Colo. 524, 328 P.2d 947 (1958); Drake v. Drake, 138 Colo. 388, 33 P.2d 1038 (1959); Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962); Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962); Harvey v. Harvey, 150 Colo. 449, 373 P.2d 304 (1962); Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963); Bell v. Bell, 156 Colo. 513, 400 P.2d 440 (1965); Larrick v. Larrick, 30 Colo. App. 327, 491 P.2d 1401 (1971); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974); Harrod v. Harrod, 34 Colo. App. 172, 526 P.2d 666 (1974); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976); In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Schulke, 40 Colo. App. 473, 579 P.2d 90, cert. denied, 439 U.S. 861, 99 S. Ct. 181, 56 L. Ed.2d 170 (1978); In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979); In re Garcia, 638 P.2d 848 (Colo. App. 1981); In re Hoffman, 650 P.2d 1344 (Colo. App. 1982); In re Faulkner, 652 P.2d 572 (Colo. 1982); In re Mann, 655 P.2d 814 (Colo. 1982); In re Lester, 647 P.2d 668 (Colo. App. 1982); In re Seely, 689 P.2d 1154 (Colo. App. 1984); In re Sarvis, 695 P.2d 772 (Colo. App. 1984); In re Hulse, 727 P.2d 876 (Colo. App. 1986); In re Price, 727 P.2d 1073 (Colo. 1986); In re McGinnis, 778 P.2d 281 (Colo. App. 1989); In re Stumpf, 932 P.2d 845 (Colo. App. 1996).

The division of marital property is committed to the sound discretion of the trial court and there is no rigid mathematical formula that the court must adhere to. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

Judiciary not to interfere with "division" of property. Whatever the role of judicial solicitude in the division of property, it will not be permitted to interfere with the statutory command that the property be literally and effectively "divided". In re Gehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).

Property division hearings are equitable in nature and trial courts have broad discretion to fashion an equitable division of the parties' property in a dissolution proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).

Under the authority of this section, the trial court is clearly limited in adjusting and dividing the assets of the husband and wife as between them alone. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967).

Under this section authorizing a "division of property" in a divorce action, the court may decree a transfer from the wife to the husband, in a proper case, even of property which he has conveyed to her. Ikeler v. Ikeler, 84 Colo. 429, 271 P. 193 (1928).

It was proper for the trial court to consider contributions of parties to the increase in or accumulation of assets by means other than direct contribution of capital. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

Where the parties to a divorce action agreed to submit the partition of real property issue to the court, rather than incur the expense of a formal statutory partition proceeding, the court, under its broad powers, could have declined to partition at that point, and, in the absence of a final agreement concerning the property, it could either have sold the property and divided the proceeds, or it could have declared that each party would henceforth be a tenant in common. Either course would have been a fair and equitable division of the property. Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973).

Judicial notice of general economic trends, such as the inflationary trend since the time of the marriage, was proper in considering the disposition of property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

A decree of a trial court permitting a wife to keep her separate inherited property and awarding her a division of property acquired through the joint efforts of the parties, where no alimony is requested or awarded, does not constitute an abuse of discretion. Green v. Green, 139 Colo. 551, 342 P.2d 659 (1959).

Where stocks and securities acquired solely by a defendant's mother out of her inheritance, and earnings were held in joint tenancy with defendant, it was error for the trial court to allot one half of the value thereof to defendant in making a division of property as between husband and wife. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).

Non-marital disability pension payments may be considered as an economic circumstance in determining maintenance. In re Peterson, 870 P.2d 630 (Colo. App. 1994).

In a property settlement proceedings in a divorce action, where the evidence disclosed that the wife had contributed substantially to the family income over a period of years, which enabled the husband to devote virtually all of his earnings to assisting his mother in preserving a valuable piece of business property, through whom he received a substantial inheritance, which he would not have received but for the wife's efforts and contributions during the period, it was error for the court to fail to take such inheritance into consideration in determining the property settlement between the parties. Lee v. Lee, 133 Colo. 128, 293 P.2d 293 (1956).

A court order empowering the wife to make the selection of the husband's stocks was erroneous because the division is a function requiring the exercise of judicial discretion, and the danger in delegating full discretion to the wife was that her selection could work to an unfair advantage for her and a decided detriment to the husband's holdings. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

Where properties awarded to the husband were heavily encumbered, and the businesses awarded financially involved, and in addition he was required to pay off a large indebtedness on property awarded to wife plus substantial support for children, evidence offered was insufficient to support such burdensome order. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).

Where under facts disclosed, order of division of property in divorce action was so manifestly unfair, inequitable, and unconscionable as to amount to an abuse of discretion, it will be ordered vacated and set aside. Bell v. Bell, 150 Colo. 174, 371 P.2d 773 (1962).

No abuse of discretion. In and of itself, the award of 35 percent of the marital assets is not an abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

And although distribution was not equal, it certainly was equitable, and thus well within the court's discretion. In re Gercken, 706 P.2d 809 (Colo. App. 1985).

Award of interest within trial court's discretion. Whether interest should be allowed on a promissory note which represents a property division award upon dissolution of marriage is a matter which lies within the discretion of the trial court based on all of attendant circumstances. In re Lucas, 631 P.2d 1175 (Colo. App. 1981).

Trial court is required to consider the economic circumstances of the spouses at the time of any hearing relating to the division of marital property. In re Wells, 850 P.2d 694 (Colo. 1993).

Marital partnership interest made subject to "charging order" pursuant to § 7-60-128 as part of property division is not an abuse of discretion, nor was it error to leave the actual amount recoverable to determination in a separate action, although property division had to be set aside because it could be unconscionable. In re Weiss, 695 P.2d 778 (Colo. App. 1984).

Where a wife was awarded a final divorce decree without alimony and given control of a jointly owned taxicab business, it was held that there was ample evidence in the record to support the finding of fact by the trial court that wife did contribute to and was entitled to a one-half interest in the business since it appeared that the operations, continued under her guidance and later under a receiver with her assistance, owed their successful outcome to these efforts. Shreyer v. Shreyer, 112 Colo. 281, 148 P.2d 1003 (1944).

Award of a share of benefits of husband's vested pension plan through the use of installment payments when lump-sum distribution at the time of decree was impractical is within the discretion of court. In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Trial court's use of two different methods to distribute the parties' two pensions, was within the sound discretion of the trial court. In re Kelm, 912 P.2d 545 (Colo. 1996).

The trial court did not abuse its discretion in awarding the property and the proceeds therefrom to plaintiff where evidence showed that he furnished substantially all the purchase money, but allowed title to be taken in his wife's name. Bieber v. Bieber, 112 Colo. 229, 148 P.2d 369 (1944).

Where the husband asserted the court abused its discretion in awarding the real property to the wife without having first determined its value, there was no abuse of discretion, because before value becomes important the court must first determine whether the property is subject to division. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

Where the husband was on active duty as a petty officer in the navy during the five year duration of the marriage, and the court found that his participation, if any, in the management of the land given to the wife prior to the marriage was adequately compensated by the income received therefrom, and the court further found that the gift from the wife's mother was intended primarily as a gift to her own children and that the husband was not entitled to retain any interest in the land under the circumstances of this case, the award of the property to the wife, based on these findings was not an abuse of discretion. Larrabee v. Larrabee, 31 Colo. App. 493, 504 P.2d 358 (1972).

Court abused its discretion when it acknowledged the parties' relatively equal contributions to the marriage and marital property, yet awarded the wife only the benefits of the increased value of the property without any responsibilities for its burdens. Under these circumstances, equity requires that the wife share a part of the debt incurred on the home during the marriage as well as a part of the increase in the home's value. In re Kiefer, 738 P.2d 54 (Colo. App. 1987).

It was an abuse of discretion to give the wife ownership of the couple's percentage of a partnership, granting one-third to the husband only upon full or partial distribution and holding the husband responsible for payment of his share of capital calls and any debt related to the partnership interest. In re Paul, 821 P.2d 925 (Colo. App. 1991).

Once initial order is entered, subsequent hearings are not merely corrections of errors committed by the trial court in the first proceeding. In re Wells, 850 P.2d 694 (Colo. 1993).

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D. Antenuptial Agreements.

Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

Antenuptial contracts may be rescinded or modified by the mutual consent of the parties and whether such a contract has been rescinded by mutual consent is a question of fact. In re Young, 682 P.2d 1233 (Colo. App. 1984).

Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

Agreement not bar to claim for maintenance unless expressly relinquished. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

As a general principle, antenuptial agreements will be given effect in this state. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Antenuptial agreements, as a matter of law, do not violate public policy and are not void ab initio in Colorado. In re Newman, 653 P.2d 728 (Colo. 1982).

Antenuptial agreements, absent fraud, are binding on the parties according to their terms, and the judiciary cannot relieve the parties from the obligations thereof. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

Otherwise legislative provisions control. When an antenuptial agreement does not provide for the distribution of marital property upon the dissolution of the marriage, then the applicable legislative provisions are controlling. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Section 14-10-112 conscionability review not extended to antenuptial agreements. The conscionability review of separation agreements, pursuant to § 14-10-112, does not extend to antenuptial agreements. In re Newman, 653 P.2d 728 (Colo. 1982).

Burden of proof is on party seeking to avoid antenuptial contract. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979); In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

The burden of proving failure to disclose is upon the party contesting the validity of the antenuptial agreement . In re Ross, 670 P.2d 26 (Colo. App. 1983).

Failure to provide wife with independent counsel does not render antenuptial agreement void per se. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).

Agreement not set aside solely because bulk of marital assets go to husband. In re Ingels, 42 Colo. App. 245, 596 P.2d 1211 (1979).

Itemized property list not necessary for agreement. Where the amount of the husband's assets was not materially misstated, his failure to supply an itemized list was not fatal to the validity of an antenuptial agreement. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

While it would have been preferable for the trial court to have entered specific values for each item in a property division, reversal was not required where it could determine that the property division made was not an abuse of discretion. In re Warrington, 44 Colo. App. 294, 616 P.2d 177 (1980).

Where antenuptial agreement is unambiguous as to treatment of increases in value of separate property, the court is required to enforce the agreement according to its terms . In re Vickers, 686 P.2d 1370 (Colo. App. 1984).

Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by § 14-10-119. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part and rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

For holding as to enforceability of prenuptial agreement which conceived disposition of property , see Franks v. Wilson, 369 F. Supp. 304 (D. Colo. 1973), appeal dismissed, 415 U.S. 986, 94 S. Ct. 1583, 39 L. Ed.2d 884, rehearing denied, 416 U.S. 975, 94 S. Ct. 2004, 40 L. Ed.2d 565 (1974).

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E. Separate Property.

Property must be classified as separate or marital. Under the requirements of this section, it is essential for the court to classify the property of the parties as either separate or marital. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

This section mandates that separate property remain separate, subject to the narrow exception that any increase in value during marriage is marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

In order to obtain status of separate property under this section, it must appear that the property was acquired prior to marriage with the intent that it become the separate property of husband. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).

Property not "separate" because of spouse's lack of interest or concern. Property titled in the name of one spouse that was acquired during the parties' marriage cannot be considered nonmarital property merely because of a course of conduct by the other spouse showing a lack of interest or concern for property. In re Heim, 43 Colo. App. 511, 605 P.2d 485 (1979).

The classification of increases in separate property as marital property is a substantial departure from prior law wherein such increases were generally classed as separate property. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

When award of increases in separate property to be made. The award of increases in separate property is to be made after considering all of the factors stated in subsection (1)(a) through (1)(d), and not just contribution. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977); In re Seewald, 22 P.3d 580 (Colo. App. 2001).

It is proper for a court to consider the depletion of separate property for marital purposes pursuant to subsection (1)(d); however, the statute does not require that the depletion of separate property for nonmarital purposes be considered and the trial court's failure to make findings as to this factor was harmless error. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Where court without authority to order sale of home. Where home was separate property of husband before marriage and after dissolution of marriage, the court was without authority to order sale of home despite fact that increase in the value of home during marriage was marital property. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

Money accumulated in pension fund prior to marriage should be considered "separate property". In re Rogers, 709 P.2d 1383 (Colo. App. 1985).

Husband's worker's compensation settlement is separate property to the extent it compensates for post-dissolution loss of income or earning capacity. In re Breckenridge, 973 P.2d 1290 (Colo. App. 1999).

Insurance proceeds acquired by husband during marriage constituted a gift and was properly classified as separate property. In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

Shares of stock owned by husband at the time of the marriage that were later involved in a stock split during the marriage were properly considered husband's separate property except to the extent the shares appreciated during the marriage. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

In order for premarital property to retain its separate character, the property must be traceable to specific assets. In the absence of evidence tracing shares of stock obtained in a stock split during the marriage to the shares husband owned at the time of the marriage, the additional shares should not have been set apart as husband's separate property where husband combined the additional shares with other shares acquired during the marriage and many of the combined shares were sold. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

Trial court did not abuse its discretion when it awarded the wife fifty percent of the husband's disposable retirement pay where the ruling was rationally based on considerations of the wife's marital contributions during the husband's military career and the fact that the wife had no survivor benefits in the event of the husband's death. In re Sinkovich, 830 P.2d 1101 (Colo. App. 1992).

Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Requiring a party to execute a noncompete agreement is within court's authority where agreement is necessary to protect goodwill of business awarded to other party and agreement is otherwise valid under § 8-2-113. In re Fischer, 834 P.2d 270 (Colo. App. 1992).

Gifts made from one spouse to the other during the course of the marriage cannot be presumed to be gifts, nor do they necessarily constitute marital property. To qualify as a "gift", a transfer of property must involve a simultaneous intention to make a gift, delivery of the gift, and acceptance of the gift. In re Balanson, 25 P.3d 28 (Colo. 2001).

Finding that home and car were wife's separate property upheld. In re Bartolo, 971 P.2d 699 (Colo. App. 1998).

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F. Marital Property.

The purpose of the division of marital property is to allocate to each spouse what equitably belongs to him or her. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

Weighing of factors set forth in this section is within the sound discretion of the trial court. In re Casias, 962 P.2d 999 (Colo. App. 1998).

The court had the discretion to enter an equitable division of property where the court had retained jurisdiction and a period had expired for meeting certain conditions set forth in an agreement between the parties and such conditions had not been met. In re Ebel, 874 P.2d 406 (Colo. App. 1993).

Division gives each party some attributes of ownership. The efficacy of a division of property in a dissolution of marriage action results from placing in the hands of each party a definable or ascertainable portion of at least some of the attributes of ownership. In re Cehret, 41 Colo. App. 162, 580 P.2d 1275 (1978).

Right to property division inchoate. In dissolution of marriage proceedings, a wife may be entitled to a division of the husband's property, and that right, prior to the dissolution action and possibly subject to an exception or two, is completely inchoate. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Property to be transferred is not determined at time of filing. At the time of the filing of the dissolution of marriage action in which the division of property will be later determined, a vesting takes place, and this interest which has vested is inchoate only in the sense that, prior to the division, the property to be transferred to the wife has not yet been determined. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

At time divorce action is filed there vests in wife her interest in property in name of husband. In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Justice requires that the joint accumulations of a husband and wife, or property which was acquired during marriage or added to through the joint efforts of both spouses, should be considered for equitable division on termination of the marriage. Kalcevic v. Kalcevic, 156 Colo. 151, 397 P.2d 483 (1964).

Specific circumstances and feelings of each party are appropriate considerations in determining which specific items of property should be sold, or alternatively, distributed to a particular party. In re Woodrum, 618 P.2d 732 (Colo. App. 1980).

Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).

Value of separate property considered. The court must consider all of the many relevant facets of the situation of the parties, including the value of property set apart to each spouse. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

Upon remand to redistribute marital property, trial court may consider the economic circumstances of each spouse. In re Wells, 850 P.2d 694 (Colo. 1993).

Award of additional $6000 for "recreational opportunities" for children was fairly embraced within the factors to be considered by court in dividing the marital property and did not create a separate "recreational fund" for the needs of the children. In re Jackson, 698 P.2d 1347 (Colo. 1985).

Contribution of spouse to acquisition of specific property is not a factor to be considered in determining whether that property is part of the marital estate, but this may be considered in determining the shares allocated to each spouse. In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977).

Decrease in value of separate property. Under subsection (1)(d), the court may consider as a relevant factor in dividing marital property the decrease in the value of separate property. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).

When applying subsection (1)(d), the court must consider an increase in the value of separate property without reference to the fact that the increase has just previously been classified as marital property under subsection (4). The trial court did not err in finding that there was an increase in the value of the husband's separate property during the marriage despite the fact that there was an aggregate decrease in the value of such property. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Value of retirement account considered. The public employees' retirement association's interest of the husband or his estate is not subject to divestment by death or discharge. At some time, he or his estate must receive, at the very minimum, the amount of accumulated deductions in his individual account. His rights have a presently determinable cash surrender value equal to his salary deductions which otherwise would have been available for the use of the parties during the marriage. Even though the husband's interest in the fund is, by its very nature, incapable of division in kind, the value of that interest was properly taken into account in a marital property division. In re Pope, 37 Colo. App. 237, 544 P.2d 639 (1975).

Because a 401(k) account is a defined contribution plan, the court must determine the marital interest; but unlike a defined benefit plan, it need not consider future appreciation. In re Casias, 962 P.2d 999 (Colo. App. 1998).

When one spouse causes title to be placed jointly with the other spouse, a gift is presumed, and the burden to show otherwise is upon the donor. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).

Transfer during the marriage by one spouse to both spouses is understood to evidence a transfer to the marital estate in the absence of appropriate evidence that the property was excluded from being marital property by a valid agreement of the parties. The exception from the definition of marital property for any property acquired by gift does not apply to such transfer. In re Stumpf, 932 P.2d 845 (Colo. App. 1996).

Where separation agreement has been set aside, property transferred in accordance with the agreement was not excluded from the division of the marital property. In re Bisque, 31 P.3d 175 (Colo. App. 2001).

Presumption of gift not overcome. Parties' explanation that title to their home was placed in joint tenancy so as to avoid inheritance taxes does not overcome the presumption that a gift occurred; it merely expresses a reason why the gift was made. In re Moncrief v. Moncrief, 36 Colo. App. 140, 535 P.2d 1137 (1975).

Resembles division of property by co-owners rather than conveyance. Transfer of property by husband to his former wife in fulfillment of a property settlement agreement entered into by the parties and approved by the court granting the divorce is a recognition of a "species of common ownership" of the marital estate by the wife resembling a division of property between co-owners and is not a transfer which resembles a conveyance by the husband for the release of an independent obligation owed by him to the wife. Imel v. United States, 375 F. Supp. 1102 (D. Colo. 1973), aff'd, 523 F.2d 853 (10th Cir. 1975); In re Questions Submitted by United States Dist. Court, 184 Colo. 1, 517 P.2d 1331 (1974).

Property acquired before legal separation deemed marital. Property acquired subsequent to a marriage but after the parties have separated without a decree of legal separation is not excepted from "marital property" by subsection (2). In re Carruthers, 40 Colo. App. 278, 577 P.2d 773 (1977); In re Huff, 834 P.2d 244 (Colo. 1992).

Where parties lived apart for over eleven years without a decree of legal separation or a valid agreement for exclusion of property, property acquired during that period was marital property. In re Huff, 834 P.2d 244 (Colo. 1992).

The presumption that property acquired by either spouse after marriage is marital property may be overcome by establishing that the property in question was acquired by a method listed in subsection (2). Assets not falling with the specific definition of separate property are deemed to be marital in nature subject to equitable division by the court. In re McCadam, 910 P.2d 98 (Colo. App. 1995); In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Appreciation of separate property during the course of the marriage is considered marital property and such increase is subject to division under conditions set forth in this section. In re Fleet, 701 P.2d 1245 (Colo. App. 1985).

Appreciation accrued during period of reconciliation to be shared. The husband is entitled to an equitable share in the total amount of appreciation that accrued during a period of reconciliation after the wife became sole owner of the family home. In re Reeser, 635 P.2d 930 (Colo. App. 1981).

Where trial court failed to determine if there had been commingling of husband's premarital assets or if any marital appreciation in any of the trust assets had occurred and should have been included in the estate, property division could not be evaluated to determine whether it was inequitable. In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Value of marital property sold by a spouse prior to filing of divorce action where spouse kept proceeds for himself is properly considered in dividing marital estate. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Partnership property divided according to spouse's contribution. A trial court's division of partnership property can be based upon the contribution made by each party to the purchase of the property. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

In order for partnership property to be considered as other than marital property under subsection (2)(d), the parties must have expressly agreed that the partnership assets would not become marital property. Otherwise, the question is one of intent of the parties, to be found as a fact by the trial court. In re Howard, 42 Colo. App. 457, 600 P.2d 93 (1979).

Court can award any rights party may have resulting from existence of corporate assets. Although the court cannot award corporate assets to individual parties in a dissolution proceeding, the court can award to a party any rights he may have because of the existence of corporate assets. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).

Where husband's rights to commissions arose prior to the date of hearing, they constituted "marital property" and were subject to division. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).

Money husband received in lieu of retirement benefits upon mandatory separation from army constituted marital property subject to distribution under the terms of this section. In re Moore, 35 Colo. App. 280, 531 P.2d 995 (1975).

Residence acquired in anticipation of marriage is marital property. Where a family residence is selected and acquired within a few days of the parties' marriage in contemplation of that marriage, and the equity accumulated therein results from contributions by both parties, the court does not err in treating the residence and all equity obtained therein as marital property. In re Altman, 35 Colo. App. 183, 530 P.2d 1012 (1974).

Home purchased with wife's proceeds from sale of home owned prior to marriage is not. In view of evidence that the family home was purchased by the wife with the proceeds of the sale of a home which she owned prior to the marriage, the home was not "marital property" within the meaning of this statute. In re Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974).

Value of good will of spouse's business deemed marital property. In a division of marital property, the value of good will incident to husband's dental practice, which is an asset acquired during his marriage, must be considered as marital property. In re Nichols, 43 Colo. App. 383, 606 P.2d 1314 (1979).

Funds withdrawn by husband from joint bank account prior to wife's filing of petition for dissolution are "marital property" and should have been taken into account by trial court in making its property distribution, notwithstanding that the wife could not trace the funds after the withdrawal. In re Posinoff, 683 P.2d 377 (Colo. App. 1984).

Personal injury settlement offer, even if just for pain and suffering, is marital property if it arises from an accident which occurred during marriage. In re Fjeldheim, 676 P.2d 1234 (Colo. App. 1983).

Trial court erred in classifying a claim for personal injury protection (PIP) benefits as a marital asset where a claim had not been submitted to the insurance company as of the date of the hearing. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

Accounts receivable constituted marital property. In re Bayer, 687 P.2d 537 (Colo. App. 1984).

Appreciation of premarital property which is realized during marriage is subject to division upon dissolution of marriage. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).

Reorganization under chapter 11 of bankruptcy code does not necessarily establish a business held premaritally by husband as worthless, so that entire sum received from sale of business's subsidiary stock and liquidation of business constituted marital property for purposes of division of property pursuant to dissolution. In re Van Genderen, 720 P.2d 593 (Colo. App. 1985).

Shares in mutual fund were "marital property" subject to equitable division, notwithstanding that funds used to purchase shares may have originally been husband's separate property, where evidence established that husband's intent in purchasing shares was to make a joint investment with wife and that he intended that shares should pass to wife upon his death. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Full increase in value of parties' separate property was properly treated as marital property. In re Young, 682 P.2d 1233 (Colo. App. 1984).

Property acquired during first marriage not marital property. Absent evidence of a contrary intent, property acquired during a first marriage between the parties and before their remarriage may not be declared marital property. In re Stedman, 632 P.2d 1048 (Colo. App. 1981).

Spouse's interest in a vested but unmatured employer-supported pension plan is marital property to the extent such plan has been funded by either employee or employer contributions during the marriage and is, therefore, subject to equitable distribution in dissolution proceeding. In re Grubb, 745 P.2d 661 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Marital property subject to division does not include property acquired after the dissolution; however, compensation that is deferred until after the dissolution, but fully earned during the marriage, is marital property. In re Vogt, 773 P.2d 631 (Colo. App. 1989); In re Anderson, 811 P.2d 419 (Colo. App. 1990); In re Miller, 888 P.2d 317 (Colo. App. 1994).

Before a trial court can make an equitable distribution of pension rights, it must first determine the present value of such rights . In re Gavito, 794 P.2d 1377 (Colo. App. 1990).

Husband's vested, employer-supported pension plan held to be "marital property". In re Nelson, 746 P.2d 1346 (Colo. 1987); In re Blake, 807 P.2d 1211 (Colo. App. 1990).

Husband's nonvested military pension held to be marital property. In re Beckman, 800 P.2d 1376 (Colo. App. 1990).

Trial court did not err in ruling that it had no authority to distribute the military retirement pay that husband received during the year that the parties were separated where there was no evidence presented concerning the amount received during that period nor any evidence that either party had dissipated any funds that had been received. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Trial court was not preempted by federal law from characterizing special separation benefits (SSB) received by former husband upon his voluntary discharge from the air force as marital property and from awarding a portion of them to wife. The SSB had more of the characteristics of a deferred compensation plan than a severance payment, and, therefore, constituted marital property subject to distribution. In re McElroy, 905 P.2d 1016 (Colo. App. 1995); In re Heupel, 936 P.2d 561 (Colo. 1997).

SSB benefit paid out after entry of the decree held not to be a "post-decree benefit". Hence, trial court's action in awarding a portion of the benefit to wife as marital property did not constitute a reopening of the decree, but rather an appropriate action to enforce the decree which incorporated the parties' separation agreement. In re Heupel, 936 P.2d 561 (Colo. 1997).

Husband's interest in contingency attorney fees which were earned during the marriage constitutes marital property subject to division. However, any portion of the fees earned after dissolution should be subject to the "reserve jurisdiction method" whereby the trial court retains jurisdiction to distribute payments when the contingent funds are received. In re Vogt, 773 P.2d 631 (Colo. App. 1989).

An unliquidated personal injury claim is marital property within the meaning of this section. The trial court should consider the actual effect that personal injury had on the marital estate in determining what the equitable share of the claim should be, and the court is required to make specific findings supporting the division of such claim. In re Fields, 779 P.2d 1371 (Colo. App. 1989), cert. denied, 781 P.2d 1040 (Colo. 1989).

Assets which consist of amounts received in settlement of husband's personal injury claim and wife's loss of consortium claim are marital property and should be distributed by the court after consideration of the needs and circumstances of the parties. In re Simon, 856 P.2d 47 (Colo. App. 1993).

Stock options owned by husband at the time of marriage but exercised during the marriage using marital funds are presumed to be marital property in the absence of a showing that husband used separate property, such as money he received from an inheritance, to exercise the options. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

Husband's right to severance pay as a substitute for a loss of future wages does not constitute marital property. In re Holmes, 841 P.2d 388 (Colo. App. 1992).

To the extent an employee stock option is granted in consideration of past services, the option may constitute marital property when granted. On the other hand, an employee stock option granted in consideration of future services does not constitute marital property until the employee has performed those future services. In re Miller, 915 P.2d 1314 (Colo. 1996).

Restricted stock options constitute marital property in their entirety where they represent a form of deferred compensation because husband had already earned the right to receive those shares. That husband's full enjoyment of the benefit is conditioned on his remaining an employee affects the present value of the restricted stock shares, not their marital nature. In re Miller, 915 P.2d 1314 (Colo. 1996).

A trial court has discretion to apply the "time rule" formula to the division of stock options acquired during the marriage or to reserve jurisdiction to distribute the stock options if and when they are exercised. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

Employee stock options constitute property only when the employee has a presently enforceable right to the options, regardless of whether the options are presently exercisable. In re Balanson, 25 P.3d 28 (Colo. 2001).

Future disability income of husband based upon disability insurance purchased during marriage with marital funds is marital property. In re Simon, 856 P.2d 47 (Colo. App. 1993).

Trial court erred in setting apart to wife as her separate property the portions of investment traceable to income generated from trust. In re Foottit, 903 P.2d 1209 (Colo. App. 1995).

Mechanism employed by the court for dividing the marital estate is a matter within the trial court's discretion. In re Dickey, 658 P.2d 276 (Colo. App. 1982).

Property order not terminable upon remarriage. 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).

Share of marital estate contingent on remaining alive. Court cannot make a portion of husband's share of the marital estate contingent on his remaining alive. In re Paulsen, 677 P.2d 1389 (Colo. App. 1984).

Home to spouse with child custody. Subsection (1)(c) makes it clear that it is desirable to award the family home to the spouse having custody of the children. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).

Subsection (3) of this section provides that possession of title is not dispositive of the method of distribution of marital property. In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977).

Intent evidenced that property no longer in joint tenancy. An order for the sale of marital property and distribution of the proceeds evidences an intent that the property is no longer to be held in joint tenancy. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

Order charging husband with selling property within one year effectively divided the marital property as of the date of the decree. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).

Court ordered conveyance of separate property to wife or sale of both non-marital and marital property is violative of statute unless there is no other way to value and divide the property equitably. In re Sarvis, 695 P.2d 772 (Colo. App. 1984).

Where the husband's expenditures and labor enabled the wife to invest a considerable percentage of her income, they should be considered as contributions to the increase in their joint, and her several, property. Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971).

Promissory note between the husband and wife and the principal due thereunder, being property acquired in exchange for property acquired prior to the marriage, were correctly treated as wife's separate property. Accrued interest should be treated as marital property and the interest payable as a marital debt, while interest accruing after the date of the decree is the wife's separate property. In re McCadam, 910 P.2d 98 (Colo. App. 1995).

Trial court lacked jurisdiction over the securities owned by the parties' children. However, trial court may consider the securities as a factor in determining how to allocate between the parties any marital debt related to the children's education. In re Gorman, 36 P.3d 211 (Colo. App. 2001).

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G. After-acquired Property.

A trial court, in ordering a division of property, cannot award to the divorced wife a share in property which might be acquired by the ex-husband after the order for a division of property has been made. Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Courts cannot divide property acquired after hearing or decree. Although courts must divide property on the basis of conditions existing at the date of the hearing or decree, they cannot consider the division of property which the parties may acquire afterwards. In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977).

A trial court cannot award to one spouse in a dissolution a share in property which might be acquired by the other spouse after the order for division of property has been made. In re Ward, 657 P.2d 979 (Colo. App. 1982).

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III. VALUATION OF PROPERTY.

Market value of real property in dispute is standard adopted by the general assembly. In re Lord, 626 P.2d 698 (Colo. App. 1980), appeal dismissed, 653 P.2d 385 (Colo. 1982).

Necessity of finding current value of all property. Generally, in making a division of property, the court must find the approximate current value of all property owned by the parties, as well as the value of separate property at the time of the marriage or at the time of acquisition, if after marriage. However, where the court determines the percentage ownership each party has in the marital property, and that percentage is not an issue on appeal, the failure to make such findings of current value is not necessarily erroneous. In re Weaver, 39 Colo. App. 523, 571 P.2d 307 (1977).

This section expressly requires that property be valued as of the date of the dissolution of the marriage or as of the date of the hearing on disposition of the property if such hearing precedes the date of dissolution. This provision is mandatory, and the only exception is that the marital property dissipated before dissolution of the marriage can be valued as of the date the property last existed. In re Hunt, 909 P.2d 525 (Colo. 1995); In re Finer, 920 P.2d 325 (Colo. App. 1996); In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

The trial court did not have discretion to create, for equitable purposes, a fictitious date of dissolution for purposes of calculating the wife's share of the husband's military pension. In re Lockwood, 971 P.2d 264 (Colo. App. 1998).

Court's discretion in determining property valuation date. This section gives the trial court broad discretion in matters of property division, including determination of the property valuation date for division of marital property. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

Court's valuation was sufficiently supported by evidence of parties' agreement as to value of lot, wife's response to husband's request for admission of current market value of property, and verified financial statements and proposed final orders submitted by both parties. In re Price, 727 P.2d 1073 (Colo. 1986).

Valuation on the date of dissolution based on an earlier agreement does not abuse court's discretion, where trial court was fully appraised of its duty to value the disputed lot as of the date of dissolution. In re Price, 727 P.2d 1073 (Colo. 1986).

Subsequent testimony to the valuation as of the date of dissolution which concerned the value of the disputed lot was not sufficient as a matter of law to overcome documentary evidence to the contrary. In re Price, 727 P.2d 1073 (Colo. 1986).

Stipulated values not binding. Where the trial court has determined that fairness and equity require that the division be an equal one, the stipulated values set 10 years before are neither binding nor relevant. Gaskie v. Hugins, 640 P.2d 248 (Colo. App. 1981).

However, parties' agreement as to the value nine months before the date of dissolution was not outdated and irrelevant to court's determination of real estate's value. In re Price, 727 P.2d 1073 (Colo. 1986).

Trial court is not bound by partnership agreement in determining value of law practice. Where partnership agreement was designed to discourage partners from leaving firm and it appeared husband intended to stay with firm, court was free to use an alternate valuation method such as the excess earnings method. In re Huff, 834 P.2d 244 (Colo. 1992).

Excess earnings method is a generally accepted method for determining the present value of a person's interest in a business, representing both tangible assets and goodwill. In re Huff, 834 P.2d 244 (Colo. 1992).

Excess earnings method did not result in "double dipping" by wife awarded maintenance as well as a portion of present value of husband's interest in law practice. In re Huff, 834 P.2d 244 (Colo. 1992).

Weight to be accorded to the valuation techniques of an expert is for the trial court's determination, depending upon the court's assessment of the reliability of the data in a particular case. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993); In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Decision as to which valuation method to rely on is a factual determination to be made by the trial court. In re Huff, 834 P.2d 244 (Colo. 1992).

Goodwill is a property or asset which supplements the earning capacity of another asset, business, or a profession, and, therefore, is not the earning capacity itself. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

The value of goodwill in an ongoing physical therapy practice is properly measured by arriving at a present value based upon past results and not by accounting for the postmarital efforts of the professional spouse. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

Identification, valuation, and division of husband's "good will" as a portion of his physical therapy practice did not divide husband's future income. In re Bookout, 833 P.2d 800 (Colo. App. 1991), cert. denied, 846 P.2d 189 (Colo. 1993).

Trial court erred in failing to credit wife with the value of her interest in a medical practice as a marital asset. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

The conservation of the principal of an estate is, in itself, a valuable contribution which should be considered. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

In disposing of a vested but unmatured pension plan, the principles of fairness and equity must attend the valuation process, and the contingencies underlying the particular pension plan must be taken into account. In re McGinnis, 778 P.2d 282 (Colo. App. 1989).

Valuation of undisclosed assets. Once property has been divided pursuant to this section, such property becomes akin to separate property, and any increase in the valve 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).

Increase in value of separate property after dissolution of marriage is necessarily separate. In re Campbell, 43 Colo. App. 72, 599 P.2d 275 (1979).

The amount by which the present value of an asset of a spouse acquired before the marriage exceeds its value at the time of the marriage constitutes a marital asset. In re Burford, 950 P.2d 682 (Colo. App. 1997).

In carrying out the division of the marital estate, the dissolution court should first add to the marital estate the amount of increase during the course of the marriage, if any, in each asset that was owned by each party before marriage. If an asset suffered a decrease in value, it should be disregarded in calculating the overall value of a spouse's separate property. Then the court should consider whether the overall value of the spouse's entire separate property has increased or decreased for the purpose of dividing the marital estate. In re Burford, 950 P.2d 682 (Colo. App. 1997).

Although the assets paid off by husband may not have increased in fair market value, husband's use of marital funds to pay off his separate debts substantially increased his equity in his separate property and must be considered in the property division. It is not necessary that the spouse produce a marital "asset" capable of being divided when marital funds are used to pay off one spouse's premarital debts. It is sufficient that the spouse paying off or paying down the separate property received a benefit from the marital income such as increased equity in its own property. The court should consider the benefit as an economic circumstance. In re Burford, 26 P.3d 550 (Colo. App. 2001).

When debts have already been paid, they may be allocated in the property division through reimbursement. In re Burford, 26 P.3d 550 (Colo. App. 2001).

Debts incurred during the marriage but which are dissolution litigation costs should be allocated pursuant to § 14-10-119. In re Burford, 26 P.3d 550 (Colo. App. 2001).

In the case of a pension plan inaccessible prior to the employee's distant retirement and terminable upon the employee's death, the risk of forfeiture is an important factor for the trial court to consider. In such a case it would be inequitable to require an immediate, lump-sum payment unless the present value included the risk of forfeiture as a factor. In re McGinnis, 778 P.2d 281 (Colo. App. 1989).

Vested but unmatured pension benefits are marital property not subject to inflexible rules of property valuation. Combination of deferred distribution and reserve jurisdiction valuation based on earliest possible retirement date for husband with full benefits proper where husband was not currently entitled to retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).

Unvested, unmatured, noncontributory defined benefit pension plans are affected by different contingencies from those where plans are vested. In re Hunt, 909 P.2d 525 (Colo. 1995).

Three methods of distribution are at court's disposal in order to divide a pension plan upon dissolution: (1) Net present value; (2) deferred distribution; and (3) reserve jurisdiction. In re Hunt, 909 P.2d 525 (Colo. 1995).

"Time rule" formula, used to apportion pension benefits under the net present value and deferred distribution methods, described in In re Hunt, 909 P.2d 525 (Colo. 1995).

"Subtraction method" disapproved. Under the net present value method of distributing a pension plan, trial court's procedure of subtracting the present value of the husband's pension at the time of the marriage from the present value of the husband's pension at the time of the dissolution represented an abuse of discretion because, under the circumstances, this procedure grossly overstated the wife's share. In re James, 950 P.2d 624 (Colo. App. 1997).

Trial court is not preempted from using the net present value method to distribute an unmatured military pension. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Trial court did not abuse its discretion in offsetting the net present values of the parties' military pensions and making a present distribution of the respective pensions, even though husband was retired from active duty while wife was not entitled to retire immediately and was still on active reserve. In re Riley-Cunningham, 7 P.3d 992 (Colo. App. 1998).

Post-divorce pension enhancements are not necessarily separate property. Although post-divorce earnings are undisputably separate property, pension enhancements are subject to application of the "time rule" formula and may be apportioned. In re Hunt, 909 P.2d 525 (Colo. 1995).

"Economic fault" concept rejected as a factor in distribution of post-divorce pension enhancements. In re Hunt, 909 P.2d 525 (Colo. 1995).

Court is not required to value or divide the parties' respective retirement plans by any set method so long as the division is equitable. No error in awarding wife the entire contribution she had made to a Public Employee Retirement Account where the benefits from such contribution were significantly less than husband's retirement benefits. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).

Court may retain jurisdiction over the distribution and valuation of stock options so that each party will "share in the risk of the fate of each of the options." In re Huston, 967 P.2d 181 (Colo. App. 1998).

Wife entitled to amount of husband's retirement funds, in the event of his death, only to extent of contributions made as of the date of dissolution. In re Kelm, 878 P.2d 34 (Colo. App. 1994), aff'd in part and rev' d in part on other grounds, 912 P.2d 545 (Colo. 1996).

"Seller's costs". The trial court did not err in not deducting normal seller's costs from the value of the home when it purported to split between the parties the remaining equity in the home because "seller's costs" were speculative at best. Rhoades v. Rhoades, 188 Colo. 423, 535 P.2d 1122 (1975).

Husband not entitled to share in the future appreciation of the home because property is valued at the dissolution hearing or property division hearing. In re Wornell, 697 P.2d 812 (Colo. App. 1985).

Loss apportioned. The trial court may apportion a loss in value of separate property between the parties. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975).

Conclusion that parties did not contribute to enhancement of stock proper. Since investment patterns of persons in a situation similar to a particular married couple is not a matter of common knowledge, and therefore, comparisons of the investments in the wife's portfolio to those of some hypothetical average investor or a skilled investment counselor were merely speculation, it was proper for the trial court to conclude on the basis of such observations that neither party contributed to enhancement of the value of the stocks. In re Wildin, 39 Colo. App. 189, 563 P.2d 384 (1977).

Valuation of intangible assets of husband's business. In determining the intangible value of husband's business, the important consideration is whether husband's business has a value to him above and beyond the tangible assets. In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Huff, 834 P.2d 244 (Colo. 1992).

Spouse was not entitled to any increase in value of assets awarded to her from the date of the decree to the date the permanent orders were entered where the decree was entered prior to the date of the hearing on disposition of property. In re Graff, 902 P.2d 402 (Colo. App. 1994).

Specific determination of the nature and elements of goodwill may be required when court orders one party to execute a covenant not to compete for protection of the goodwill of a business awarded to the other party. In re Fischer, 834 P.2d 270 (Colo. App. 1992).

Central to the valuation of property is the determination whether the property will actually be sold, thereby resulting in a net equity. The court should consider husband's intentions as to whether he will sell the property at issue, and if the property is to be sold, the finding of net equity must comport with the evidence. In re Finer, 920 P.2d 325 (Colo. App. 1996).

In case of dissipation of property, trial court's alternative ruling that stock shares could be valued at the time when they were sold, if that value was higher than the value on the date of the decree, was proper. In re Huston, 967 P.2d 181 (Colo. App. 1998).

Trial court did not err in valuing a leased automobile at $13,500, where husband had recently prepaid $13,500 on the lease of the leased vehicle. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

Applied in In re Thompson, 706 P.2d 428 (Colo. App. 1985).

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IV. SCOPE OF REVIEW.

Scope of review. Division of property in dissolution of marriage proceedings may only be overturned upon a finding that the trial court abused its discretion. In re Talarico, 36 Colo. App. 389, 540 P.2d 1147 (1975); In re Sharp, 823 P.2d 1387 (Colo. App. 1991).

An appellate court will alter a division of property only if the trial court abuses its discretion. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977).

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).

Acceptance of the benefits of a judgment constitutes a waiver of appeal rights only if such action is inconsistent with the basis for the appeal. It is when the appeal, if successful, will again put into issue the right of the party to receive the benefits already accepted that a waiver of the right to appeal has been found. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Husband is not barred from appealing portion of the property division where he had previously received his share of the retirement funds pursuant to the parties' agreement before the hearing on permanent orders. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

A trial court having reached its conclusions and entered its order and judgment on documentary evidence alone, the supreme court was as well qualified to determine the equities involved in a divorce action concerning a division of the property of the parties as was the trial court, and under such circumstances, presumptions in favor of the correctness of the order and judgment were not conclusive. Stephenson v. Stephenson, 134 Colo. 96, 299 P.2d 1095 (1956).

In an action for divorce, where the questions presented to the appellate court for review concern only the property rights of the parties, matters relating to the divorce were not considered. Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).

Where the reporter's transcript of the testimony taken at a hearing on division of property in a divorce action was not included in the record on error, the supreme court assumed that the trial court had before it the entire situation of the parties, that the evidence before the court fully supported the determination made, and that all conflicting claims of the parties were properly resolved. Gier v. Gier, 139 Colo. 289, 339 P.2d 677 (1959).

Where a decree ordering the title to property to remain in joint tenancy and granting the rights of possession and income in the property to the wife was not challenged, and had long since become final, the supreme court could not review it. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

Under the law of the case doctrine, conclusions of an appellate court on issues presented to it, as well as rulings logically necessary to sustain such conclusions, become the law of the case and generally must be followed in subsequent proceedings in that case. However, application of the law of the case by a trial court to its property division rulings entered prior to an appeal is a discretionary rule of practice. The trial court's original permanent orders lose any binding effect or precedential value when they are reversed on appeal. In re Burford, 26 P.3d 550 (Colo. App. 2001).

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V. ENFORCEMENT.

Enforcement of property settlement. Ordering the payment of an amount due pursuant to the terms of the property settlement, together with interest, is an enforcement of the original decree and not a modification of the property settlement. In re Schutte, 721 P.2d 160 (Colo. App. 1986).


 

14-10-114 - Maintenance.

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(1) Legislative declaration. The general assembly hereby finds that the economic lives of spouses are frequently closely intertwined in marriage and that it is often impossible to later segregate the respective decisions and contributions of the spouses. The general assembly further finds that when a dissolution of marriage or legal separation action has been filed and temporary orders are to be determined pursuant to section 14-10-108, it is generally appropriate to utilize the period of temporary orders as a period of adjustment during which the marital arrangements of the parties may be recognized through a temporary blending of the parties' incomes. Accordingly, the general assembly declares that for purposes of temporary orders, it is appropriate in most cases to apply a presumptive formula to the determination of temporary maintenance.

(2) (a) In every proceeding for dissolution of marriage or legal separation when temporary maintenance is requested by a party and when the combined annual gross income of the two parties is seventy-five thousand dollars or less, there shall be a rebuttable presumption in favor of a specific award of temporary maintenance from the higher income party to the lower income party based upon the formula set forth in paragraph (b) of this subsection (2). In those cases in which the combined annual gross income of the parties exceeds seventy-five thousand dollars, the court may award a monthly amount of temporary maintenance pursuant to the provisions of subsections (3) and (4) of this section.

(b) (I) (A) The monthly amount of temporary maintenance in cases in which the parties' combined annual gross income is seventy-five thousand dollars or less shall be equal to forty percent of the higher income party's monthly adjusted gross income less fifty percent of the lower income party's monthly adjusted gross income. If the remainder of such calculation is the number zero or a negative number, the presumption shall be that temporary maintenance shall not be awarded. If the remainder of such calculation is more than zero, that amount shall be the amount of the monthly temporary maintenance.

(B) In any action to establish or modify temporary maintenance pursuant to this subsection (2), the formula set forth in sub-subparagraph (A) of this subparagraph (I) shall be used as a rebuttable presumption for the establishment or modification of the amount of temporary maintenance. Courts shall deviate from the formula where its application would be inequitable or unjust. Any such deviation shall be accompanied by written or oral findings by the court specifying the reasons for the deviation and the presumed amount under the formula without deviation.

(C) The parties may agree in writing to waive temporary maintenance under this subsection (2) where one party is otherwise entitled to temporary maintenance under the formula or the parties may agree in writing to deviate from the presumptive amount of temporary maintenance. Any such agreement to waive temporary maintenance or to deviate from the presumptive amount shall include the reason or consideration for the waiver or deviation. The court shall have jurisdiction to review such agreement and to decline to approve such agreement if the court determines that the agreement is unconscionable.

(II) At the time of the initial establishment of temporary maintenance pursuant to this subsection (2), or in any proceeding to modify a temporary maintenance order pursuant to this subsection (2), if a party is under an obligation to pay maintenance or alimony pursuant to a prior valid court order, an adjustment shall be made revising such party's income by the amount of such maintenance or alimony actually paid prior to calculating the amount of temporary maintenance.

(III) At the time of the initial establishment of temporary maintenance pursuant to this subsection (2), or in any proceeding to modify a temporary maintenance order pursuant to this subsection (2), if a party is legally responsible for the support of other children who are not the children of the parties and for whom the parties do not share joint legal responsibility, an adjustment shall be made revising such party's income by the amount of such child support paid prior to calculating the amount of temporary maintenance.

(IV) (A) For purposes of this section, "income" shall have the same meaning as that term is described in section 14-10-115 (7).

(B) For purposes of calculating the formula set forth in this paragraph (b), "monthly adjusted gross income" means gross income less preexisting maintenance or alimony obligations actually paid by a party as described in subparagraph (II) of this paragraph (b) and less the amount of child support paid by a party, as described in subparagraph (III) of this paragraph (b).

(c) The period of time covered by any temporary maintenance ordered pursuant to this subsection (2), upon the request of a party, shall begin at the time of the parties' physical separation or filing of the petition or service upon the respondent, whichever occurs last, taking into consideration payments made by either party during such period.

(d) Because spousal maintenance awards entered at temporary orders pursuant to this subsection (2) are made under different standards and for different reasons than spousal maintenance awards entered at permanent orders, the temporary maintenance formula set forth in this subsection (2) shall not be used for the determination of spousal maintenance orders to be entered at permanent orders and any temporary maintenance order entered pursuant to this subsection (2) shall not prejudice the rights of either party at permanent orders.

(e) After determining the presumptive amount of temporary maintenance pursuant to this subsection (2) and the amount of temporary child support pursuant to section 14-10-115, the court shall consider the respective financial resources of each party and determine the temporary payment of marital debt and the temporary allocation of marital property.

(3) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of marriage by a court, the court may grant a temporary maintenance order when the parties' combined annual gross income is more than seventy-five thousand dollars or a maintenance order at the time of permanent orders for either spouse only if it finds that the spouse seeking maintenance:

(a) Lacks sufficient property, including marital property apportioned to him or her, to provide for his or her reasonable needs; and

(b) Is unable to support himself or herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

(4) A temporary maintenance order in those circumstances in which the parties' combined annual gross income is more than seventy-five thousand dollars or a maintenance order entered at the time of permanent orders shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors including:

(a) The financial resources of the party seeking maintenance, including marital property apportioned to such party, and the party's ability to meet his or her needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and that party's future earning capacity;

(c) The standard of living established during the marriage;

(d) The duration of the marriage;

(e) The age and the physical and emotional condition of the spouse seeking maintenance; and

(f) The ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.

 

Source: L. 71: R&RE, p. 526, § 1. C.R.S. 1963: § 46-1-14. L. 79: (2)(b) amended, p. 644, § 1, effective July 1. L. 98: (2)(a) amended, p. 1397, § 41, effective February 1, 1999. L. 2001: Entire section amended, p. 481, § 1, effective July 1.

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Analysis

I. General Consideration.
II. Award of Maintenance.
A. Prerequisites.
B. Determination of Right or Need for Maintenance.
C. Amount and Form of Maintenance.
D. Discretion of Court.
E. Modification and Scope of Review.
III. Separate Maintenance.
IV. Antenuptial Agreement.
I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 607, 612-620, 750-752, 756-764, 786-791, 794, 795, 797- 803.

C.J.S. See 27B C.J.S., Divorce, § § 369-415.

Law reviews. For article, "Legislation Which Should Interest the Bar", see 20 Dicta 217 (1943). For article, "Forms Committee Presents Standard Pleading Samples to Be Used in Divorce Litigation", see 29 Dicta 94 (1952). For note, "The Effect of a Divorce Decree on a Subsequent Claim for Alimony", see 35 U. Colo. L. Rev. 402 (1963). For note on divorce, separation, and the federal income tax, see 39 U. Colo. L. Rev. 544 (1967). For note, "Legislation: Domestic Relations — New Colorado Statutes Govern Procedure in Contested Child Custody Cases", see 40 U. Colo. L. Rev. 485 (1968). For article, "Due Process in Involuntary Civil Commitment and Incompetency Adjudication Proceedings: Where Does Colorado Stand?", see 46 Den. L.J. 516 (1969). For article, "Pre-Nuptial Agreements Revisited", see 11 Colo. Law. 1882 (1982). For article, "Automatic Escalation Clauses Relating to Maintenance and Child Support", see 12 Colo. Law. 1083 (1983). For article, "The Continued Jurisdiction of the Court to Modify Maintenance", see 13 Colo. Law. 62 (1984). For article, "Taxation", which discusses a recent Tenth Circuit decision dealing with periodic payments as alimony or property settlement, see 61 Den. L.J. 392 (1984). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Marital Agreements", see 18 Colo. Law. 31 (1989). For article, "The Case For Maintenance Reform", see 23 Colo. Law. 53 (1994). For article, "Voluntary Early Retirement as a Factor in Modifying Maintenance", see 25 Colo. Law. 43 (April 1996). 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, "New Temporary Formulaic Spousal Maintenance in Colorado: An Overview", see 30 Colo. Law. 87 (August 2001).

Annotator's note. Since § 14-10-114 is similar to repealed § 46-1-5 (1)(d), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Any award of maintenance to a spouse in Colorado is a personal statutory right and not a property right. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

The spirit of this section was comprehensive enough to cover a case where there might be some question as to whether a marriage was one de jure, provided there was a marriage de facto. Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902).

Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

There is a distinction between maintenance awards and property settlements. Property divisions are intended to accomplish a just apportionment of marital property over time, whereas maintenance is intended be a substitute for marital support that can be used, for example, to ease a spouse's transition into the work force and prevent the spouse from becoming dependent on public assistance. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Division of property is mandatory under § 14-10-113, whereas an award of maintenance is discretionary under this section. In re Wise, 264 B.R. 701 (Bankr. D. Colo. 2001).

Maintenance used to balance equities. A trial court may use an award of maintenance as a tool to balance equities and compensate a spouse whose work has enabled the other spouse to obtain an education; however, this tool is available for use only where the spouse seeking maintenance meets the statutory threshold requirements of need. In re McVey, 641 P.2d 300 (Colo. App. 1981).

Trial court did not abuse its discretion in determining that it would be equitable in view of the division of property for the income of husband and wife to be relatively equal. In re Martin, 707 P.2d 1035 (Colo. App. 1985).

The divorce decree was the principal thing and the judgment for alimony was incidental, and whether they were entered separately or together, they were treated as part of the same decree. Miller v. Miller, 129 Colo. 462, 271 P.2d 411 (1954).

Matters of maintenance and property division are inextricably interwoven. In re McVey, 641 P.2d 300 (Colo. App. 1981).

It was well-established in Colorado that the courts viewed the testimony in alimony and property settlement matters in the light most favorable to the prevailing party. Gleason v. Gleason, 162 Colo. 212, 425 P.2d 688 (1967).

Alimony was defined generally as payments necessary for food, clothing, habitation, and other necessities for the support of the wife. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).

Insurance policies and the premiums necessary to maintain them in full force were not in any sense to provide for food, clothing, habitation, or other necessities for the support of the wife. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).

An award to the wife of the use, possession, and income of the real estate did not constitute an award of alimony, because the right to use and possession and the income of real property were but incidents of the ownership of that property. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

When parties availed themselves of the good offices of the court to fix the amounts of alimony to be paid from time to time and themselves changed the action from one for separate maintenance to one for divorce, it was assumed that they submitted themselves to the jurisdiction of the court for the entry of such orders as it deemed just and fair in accordance. Gavette v. Gavette, 104 Colo. 71, 88 P.2d 964 (1939).

Where the parties made a good faith although unsuccessful attempt at reconciliation and where the husband supported the family during this time, the support paid and contributed by the husband constituted payment of the maintenance installments accruing during the period they were living together. In re Peterson, 40 Colo. App. 115, 572 P.2d 849 (1977).

For the effect of an invalidity of marriage determination on maintenance payments which were terminated upon remarriage, see Torgan v. Torgan, 159 Colo. 93, 410 P.2d 167 (1966).

Applied in In re Thompson, 39 Colo. App. 400, 568 P.2d 98 (1977); In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); In re Wagner, 44 Colo. App. 114, 612 P.2d 1147 (1980); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Angerman, 44 Colo. App. 298, 612 P.2d 1166 (1980); In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980); In re Carney, 631 P.2d 1173 (Colo. 1981); Faris v. Rothenberg, 648 P.2d 1089 (Colo. 1982); In re Dickey, 658 P.2d 276 (Colo. App. 1982); In re Manzo, 659 P.2d 669 (Colo. 1983); In re Westlake, 674 P.2d 1386 (Colo. App. 1983); In re Dixon, 683 P.2d 803, (Colo. App. 1983); In re Wormell, 697 P.2d 812 (Colo. App. 1985); In re Thompson, 706 P.2d 428 (Colo. App. 1985); In re Martin, 707 P.2d 1035 (Colo. App. 1985); People in Interest of V.H., 749 P.2d 460 (Colo. App. 1987); In re Micaletti, 796 P.2d 54 (Colo. App. 1990); In re Sim, 939 P.2d 504 (Colo. App. 1997).

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II. AWARD OF MAINTENANCE.
A. Prerequisites.

Maintenance must be requested in petition. Under the uniform act, maintenance must be requested in the petition for dissolution. In re Boyd, 643 P.2d 804 (Colo. App. 1982).

Property division must precede consideration of maintenance. In re Jones, 627 P.2d 248 (Colo. 1981). In re Huff, 834 P.2d 244 (Colo. 1992).

Application of subsection (1)(a) presupposes dividing marital property after setting apart separate property. The application of subsection (1)(a) of this section presupposes that the court has first set apart to each spouse his or her respective separate property and has divided the marital property. In re Jones, 627 P.2d 248 (Colo. 1981).

Alimony being consequent upon obtaining a divorce, there could be no judgment for alimony without a divorce decree, though they may have been and generally were entered together, the incident could not exist without the principal. Miller v. Miller, 129 Colo. 462, 271 P.2d 411 (1954).

Where no cause of action was stated in a complaint for divorce, no allowance of alimony or attorney fees could have been made. Oates v. Oates, 72 Colo. 195, 210 P. 325 (1922).

No personal judgment for alimony could be entered against the husband where service was by publication, but such alimony could be made a charge on land over which the court acquired jurisdiction by such service. Fowler v. Fowler, 74 Colo. 231, 220 P. 988 (1923).

Awards of maintenance are non-dischargeable in bankruptcy and the question of whether a domestic obligation is in the nature of maintenance must be determined based on federal bankruptcy standards, taking into account the substance of the obligation and the intent of the parties at the time of dissolution. In re Wilson, 888 P.2d 365 (Colo. App. 1994).

The parties' designation of a debt in the decree of dissolution as either a maintenance award that is non-dischargeable in bankruptcy or a property settlement that is dischargeable is not dispositive and in determining the intent of the parties and the substance of the obligation, the trial court must look beyond the language of the decree and may consider extrinsic evidence. In re Wilson, 888 P.2d 365 (Colo. App. 1994).

Trial court improperly found that husband's obligation to pay a street improvement debt was a nondischargeable lump sum maintenance obligation since, although an obligation to pay such a debt can be in the nature of maintenance, there was no evidence in the record that the parties intended that the obligation be in the nature of maintenance. In re Wilson, 888 P.2d 365 (Colo. App. 1994).

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B. Determination of Right or Need for Maintenance.

This section leaves to the trial court the determination under the particular facts of each case whether to award alimony . Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

This section does not compel a court to grant alimony in a divorce case; it is merely permissive. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); International Trust Co. v. Liebhardt, 111 Colo. 208, 139 P.2d 264 (1943).

Alimony could be waived, and the right to seek alimony could be surrendered for a valuable consideration. Newey v. Newey, 161 Colo. 395, 421 P.2d 464, 422 P.2d 641 (1966).

Court must make findings of fact which demonstrate the basis of its award of maintenance. In re Laychak, 704 P.2d 874 (Colo. App. 1985).

Evidence relevant to issue of "need". While evidence that husband allegedly inflicted the injuries which resulted in wife's medical expenses and decreased her earning capacity is irrelevant, evidence of wife's medical expenses and earning capacity are relevant to establishing statutory requirements of need and trial court's exclusion of such evidence adversely affected wife's rights regarding maintenance. In re Hulse, 727 P.2d 876 (Colo. App. 1986).

Determination of spouse's reasonable needs depends on the particular facts and circumstances of the parties' marriage, and court should consider the reasonable expectations of the parties in determining whether the a party should be granted maintenance. In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990).

The wife is not required to consume her portion of the marital property before being entitled to maintenance. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976); In re Sewell, 817 P.2d 594 (Colo. App. 1991); In re Nordahl, 834 P.2d 838 (Colo. App. 1992); In re Bartolo, 971 P.2d 699 (Colo. App. 1998).

A court awarding maintenance need not make explicit findings that the wife has insufficient property to meet reasonable needs or is unable to support herself through appropriate employment. In re Lee, 781 P.2d 102 (Colo. App. 1989).

All that is required is that the court consider the wife's share of the marital property in arriving at its maintenance award. In re Eller, 38 Colo. App. 74, 552 P.2d 30 (1976).

In determining whether to award maintenance, the court must make a threshold determination that the spouse requesting it lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself through appropriate employment. In re Renier, 854 P.2d 1382 (Colo. App. 1993); In re Fisher, 931 P.2d 558 (Colo. App. 1996); In re Bartolo, 971 P.2d 699 (Colo. App. 1998).

The trial court properly determined questions of alimony and support basing its findings on the financial conditions, abilities, and needs of the parties as they appeared at the time of the hearing rather than on what those conditions might have been in the past or may be in the future. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).

Because an award of permanent alimony must be based upon the circumstances existing at the time of the hearing thereon, including, but not limited to, the duration of the marriage, the financial condition of the parties, their needs and their abilities. Boyer v. Boyer, 148 Colo. 535, 366 P.2d 661 (1961).

Highly relevant factor to be considered by court in effecting just division of marital property is the extent to which the division will promote the objective of providing for each party's financial needs without maintenance. In re Jones, 627 P.2d 248 (Colo. 1981).

Fact that parties are in debt and having serious financial problems at time of dissolution does not preclude a nominal award of maintenance, if there is reason to believe that one party may rebound financially and may again be in the position to assist the other spouse in obtaining a standard of living nearer to that enjoyed during their marriage. In re Fernstrum, 820 P.2d 1149 (Colo. App. 1991).

Under subsection (1)(a) propriety of award of maintenance depends upon the inadequacy of the property and earning capacity possessed by the party seeking the award. In re Jones, 627 P.2d 248 (Colo. 1981); In re Olar, 747 P.2d 676 (Colo. 1987).

Husband's rights in discretionary trust are to be considered as "economic circumstance" of the husband in determining a just division of the marital property pursuant to § 14-10-113 (1)(c) and as a "relevant factor" in making an award of maintenance under subsection (2). In re Rosenblum, 43 Colo. App. 144, 602 P.2d 892 (1979).

Contribution to education of spouse. Among the relevant factors to be considered in a division of marital property is the contribution of the spouse seeking maintenance to the education of the other spouse from whom the maintenance is sought. In re Graham, 194 Colo. 429, 574 P.2d 75 (1977); In re Olar, 747 P.2d 676 (Colo. 1987).

Voluntary financial contributions to wife by adult children, which are not based upon any legal obligation, are not appropriate factors for the trial court to consider in determining the amount of a maintenance award. In re Serdinsky, 740 P.2d 521 (Colo. 1987).

Limited consideration of a third party's resources, such as a current spouse's income, is not absolutely prohibited if the existence or use of such assets is directly relevant to an allegation by the payor spouse of a substantial and continuing change of circumstances. In re Bowles, 916 P.2d 615 (Colo. App. 1995).

The conduct of the party seeking alimony was formerly to be examined closely by the trial court, and evidence of moral delinquency or complete disregard of the marital vows and duties would be viewed as a bar to alimony. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

In Colorado, fault was not the sole standard in determining whether alimony would be awarded. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

Permanent alimony could be awarded the divorced wife although the decree may have been granted the husband for her fault. Bock v. Bock, 154 Colo. 408, 390 P.2d 956 (1964); Neander v. Neander, 35 Colo. 495, 84 P. 69 (1906); Vigil v. Vigil, 49 Colo. 156, 111 P. 833 (1910).

The fact that a person is without funds and without profitable employment has been held not to preclude the allowance of reasonable alimony and support where nothing but a disinclination to work, regardless of the motive therefor, interferes with his ability to earn a reasonable living. Rapson v. Rapson, 165 Colo. 188, 437 P.2d 780 (1968); Berge v. Berge, 33 Colo. App. 376, 522 P.2d 752 (1974), aff'd, 189 Colo. 103, 536 P.2d 1135 (1975).

The fact that defendant decided to quit his employment and return to college did not preclude the allowance of a reasonable support order based on his demonstrated earning capacity. Rapson v. Rapson, 165 Colo. 188, 437 P.2d 780 (1968).

Even though husband was out of work through no fault of his own and despite his good faith efforts to obtain work, award of monthly maintenance to wife was not an abuse of discretion because the husband retained a significant earning capacity. In re Gray, 813 P.2d 819 (Colo. App. 1991).

"Appropriate employment" means the employment is suited to the individual, including the individual's expectations and intentions as expressed during marriage. In re Olar, 747 P.2d 676 (Colo. 1987).

What constitutes "appropriate employment" requires consideration of the party's economic circumstances and reasonable expectations established during the marriage. The terms "reasonable needs" and "appropriate employment" should not be interpreted narrowly. Aldinger v. Aldinger, 813 P.2d 836 (Colo. App. 1991).

The determination of what constitutes "appropriate employment" and "reasonable needs" under subsection (1) is dependent upon the particular facts and circumstances of each case. In re Sewell, 817 P.2d 594 (Colo. App. 1991).

It is a defense to an action by a wife for alimony, support, maintenance, or separate maintenance that the husband already is making her a suitable and regular allowance, provided that allowance is a sufficient one. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

A claim that a trial court failed to rule on the issue of granting or denying alimony in a divorce action was not supported by a record which showed an interlocutory decree providing for monthly support payments for a minor child until further order of the court, together with fees for defendant's counsel. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).

A spouse who accepts maintenance payments or an attorney fee award is not precluded from appealing such order. In re Lee, 781 P.2d 102 (Colo. App. 1989).

Court must reconsider the amount and duration of maintenance awarded upon correcting the property division. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

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C. Amount and Form of Maintenance.

There is no mathematical formula for establishing a just and equitable property settlement or alimony or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

In the absence of special circumstances, an order for the support of a wife in a divorce case should be a reasonable sum, based on the necessities of the wife and the husband's ability to pay. Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955); Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

Alimony in gross will not normally be awarded unless special circumstances are present which support such award. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).

While the needs of a divorced wife remaining unmarried are not controlling on the amount of alimony to be awarded, they are deserving of careful consideration. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938).

A personal judgment against a husband in a divorce action for alimony in a sum not justified by the record should not be entered simply on the ground of possible indefinite future increase in income, because if his financial situation improves so as to justify an increase in alimony, the power of the court to make additional appropriate orders may be invoked at the wife's pleasure. Gourley v. Gourley, 101 Colo. 430, 73 P.2d 1375 (1937).

In the absence of special circumstances which require or make a lump-sum award of alimony proper, or a compelling reason that necessitates the desirability for such an award, a lump-sum or gross award of alimony should not be made. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

Absent extraordinary circumstances, court may not order one party to use property awarded in a dissolution proceeding to pay maintenance to the other party. In re Gray, 813 P.2d 819 (Colo. App. 1991).

Each case depends on own facts. As to the determination as to whether to make a lump-sum award of alimony, each case depends upon its own peculiar facts and circumstances. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

Alimony in gross is not unacceptable per se. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

While maintenance in gross is not favored, nevertheless, in a proper case in may be awarded. In re McVey, 641 P.2d 300 (Colo. App. 1981).

Since the granting of alimony in gross, or lump-sum alimony, as it is sometimes called, provides a definite and final judgment which the court cannot later modify, periodic payments are preferred, because such payments can be modified if a change in circumstances occurs. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

Whether the court should award periodic alimony or alimony in gross is generally held to be a matter within the sound discretion of the court. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973); Moss v. Moss, 35 Colo. App. 53, 531 P.2d 635 (1974), aff'd, 190 Colo. 491, 549 P.2d 404 (1976); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975).

The trial court has broad discretion in determining the amount of alimony and the form of the award, i.e., periodic payments or alimony in gross. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

Although alimony could consist of periodic payments, indefinite in time and certain in amount, it was not necessarily true that all such payments in fixed amounts constituted alimony. Magarrell v. Magarrell, 144 Colo. 228, 355 P.2d 946 (1960).

Periodic alimony is generally favored because the court retains jurisdiction of the matter and may later modify the award. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).

Awards of periodic payments of alimony are preferred over awards of alimony in gross because an award of alimony in gross is a final judgment which is not modifiable at a later time while an award of periodic payments may be modified to adjust for changes in the circumstances of the parties. Moss v. Moss, 190 Colo. 491, 549 P.2d 404 (1976).

A decree giving land as alimony was not ipso facto erroneous, because entered after the interlocutory and before the final decree of divorce, there being a prayer for alimony. Fowler v. Fowler, 74 Colo. 231, 220 P. 988 (1923); Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923).

In awarding permanent alimony, care should be taken that it does not amount to an appropriation of the entire estate of the husband. Elmer v. Elmer, 132 Colo. 57, 285 P.2d 601 (1955).

An order for "permanent alimony" cannot amount to confiscation of the assets of the husband. Elmer v. Elmer. 132 Colo. 57, 285 P.2d 601 (1955).

Moreover, a court cannot make an award which will impoverish the husband. Santilli v. Santilli, 169 Colo. 49, 453 P.2d 606 (1969).

In setting the amount of maintenance to be awarded, the court must consider all relevant factors including the ability of the spouse paying maintenance to meet his own needs and the needs of the spouse receiving maintenance. The court may also consider the future earning potential of the spouse. In re Gray, 813 P.2d 819 (Colo. App. 1991).

No income is imputed to the wife for choice of a retirement option that resulted in a smaller payment, for delaying payment in another plan, or for requesting that the court ignore the equity in her home. A decision that income should be imputed to the wife for not choosing differing retirement options or for not using equity in the house for living expenses would be tantamount to requiring her to exhaust her portion of the marital property before she is entitled to maintenance. In re Folwell, 910 P.2d 91 (Colo. App. 1995).

Court may not incorporate attorney fees into maintenance award. While award of attorney fees must be reviewed in light of parties' resources following property division and award of maintenance, standards for the different elements of the order are separate and distinct; tax consequences also may differ. In re Huff, 834 P.2d 244 (Colo. 1992).

Unliquidated workers' compensation award held to be different from pension. Whether award is marital property depends on extent to which award compensates for loss of earning capacity and medical expenses incurred during the marriage. If award compensates the spouse for post-dissolution loss of earning capacity, it is not marital property even if the compensable injury occurred during the marriage. If workers' compensation claim is pending on date of dissolution and will likely include indemnification for loss of marital earnings or medical expenses, trial court may reserve jurisdiction to apportion marital interest upon receipt of award. In re Smith, 817 P.2d 641 (Colo. App. 1991).

Where trial court's errors in making its property division with respect to stock options, interspousal gifts to wife, and wife's interest in the family trust impacted a substantial portion of the total marital assets, on remand the trial court should reconsider its maintenance award in light of its new property division and in light of the significant decrease in the value of one of the parties' investment accounts. In re Balanson, 25 P.3d 28 (Colo. 2001).

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D. Discretion of Court.

The awarding of alimony and fixing the amount thereof rested in the sound discretion of the trial court and unless an abuse of discretion was shown its judgment in such cases was not disturbed. Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938); Kleiger v. Kleiger, 127 Colo. 86, 254 P.2d 426 (1953); Bieler v. Bieler, 130 Colo. 17, 272 P.2d 636 (1954); Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958); Green v. Green, 139 Colo. 551, 342 P.2d 659 (1959); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Lanz v. Lanz, 143 Colo. 73, 351 P.2d 845 (1960); Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674 (1960); Walden v. Walden, 147 Colo. 221, 363 P.2d 168 (1961); Flor v. Flor, 148 Colo. 514, 366 P.2d 664 (1961); McMichael v. McMichael, 152 Colo. 65, 380 P.2d 233 (1963); Hayutin v. Hayutin, 152 Colo. 261, 381 P.2d 272 (1963); Alden v. Alden, 155 Colo. 51, 393 P.2d 5 (1964); Kraus v. Kraus, 159 Colo. 331, 411 P.2d 240 (1966); MacReynolds v. MacReynolds, 29 Colo. App. 267, 482 P.2d 407 (1971); Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Jekot v. Jekot, 32 Colo. App. 118, 507 P.2d 473 (1973); In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); In re Martin, 707 P.2d 1035 (Colo. App. 1985); In re Gray, 813 P.2d 819 (Colo. App. 1991); In re Bartolo, 971 P.2d 699 (Colo. App. 1998); In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

Awards of child support and maintenance are matters generally within the sound discretion of the trial court and will not be set aside on appellate review in the absence of an abuse of discretion. In re Krise, 660 P.2d 920 (Colo. App. 1983).

Although a wife did not request alimony in her answer, once the trial court decided the issue of divorce, it was within its power under this section to determine whether the circumstances required additional orders for alimony and support. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

A trial court certainly could, if so inclined, consider the effect of state and federal income taxes on its contemplated award. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).

The task of a trial court in a divorce action was to make a fair and equitable award of alimony and support, letting the taxes, and tax deductions, fall where they may. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).

The supreme court cannot say as matter of law that a trial court abuses its discretion in limiting the period of time during which alimony should be paid by the husband where the trial court awards alimony in a definite sum payable in monthly installments based on the finding that the award meets the reasonable needs of the wife in light of her present condition. Liggett v. Liggett, 152 Colo. 110, 380 P.2d 673 (1963).

Trial court erred in determining that it did not have discretion to determine the duration of maintenance and that it was therefore required to provide for maintenance for an unspecified period of time. In re Fisher, 931 P.2d 558 (Colo. App. 1996).

Alimony, support, and property settlement issues were formally considered together to determine whether the court had abused its discretion, and in making the determination, the court would consider a variety of factors, including whether the property was acquired before or after marriage, the efforts and attitudes of the parties toward its accumulation, the respective ages and earning abilities of the parties, the conduct of the parties during the marriage, the duration of the marriage, their stations in life, their health and physical condition, the necessities of the parties, their financial condition, and all other relevant circumstances. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

In determining whether the trial court abused its discretion in awarding maintenance, the property and maintenance awards must be considered together. In re Huff, 834 P.2d 244 (Colo. 1992).

Where the maintenance award reflected a thorough consideration of the family's standard of living, the length of the marriage, the husband's ability to pay, the wife's age and earning capacity, and the wife's responsibilities as residential custodian of five children, the award was amply supported by the evidence and would not be overturned. In re Hunt, 868 P.2d 1140 (Colo. App. 1993).

The age of the parties, in conjunction with the relative earning potential each of the parties can reasonably anticipate, and also their relative wealth will be considered in determining whether the trial judge abused his discretion in the alimony award. Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970).

Consideration of maintenance and attorney fees to determine whether court abused its discretion. In cases where an appeal has been taken from the property division, maintenance, and attorney 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); In re Seewald, 22 P.3d 580 (Colo. App. 2001).

Finding as to earning capacity not confiscatory. Where the evidence supported the court's finding that the husband was capable of earning sums greatly in excess of his present net salary, although it appeared that the court based its order on the present net income of the husband, the orders were not confiscatory. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).

Where the amount of property the trial court ordered the defendant to pay the plaintiff restored the plaintiff substantially to the same asset position she had occupied prior to the marriage, since the plaintiff's ability to support herself was substantially the same as it had been prior to the marriage, the trial court did not abuse its discretion. Cohan v. Cohan, 172 Colo. 563, 474 P.2d 792 (1970).

Where the husband's income was not stable but fluctuated from month to month, the trial court did not abuse its discretion in directing payments of support and alimony on a percentage of the husbands's income. Reap v. Reap, 142 Colo. 354, 350 P.2d 1063 (1960).

Where the wife had contributed her own funds to the purchase of the family home, and there was a comparatively small amount of property owned by the parties, and the wife was left without any right to receive alimony payments, the trial court did not abuse its discretion in awarding the jointly owned home to the wife in its order amended after the husband's death. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).

Awarding maintenance to wife on decreasing schedule held abuse of discretion. In re Lodholm, 35 Colo. App. 411, 536 P.2d 842 (1975).

Trial court has discretion to award maintenance that decreases incrementally on a future date when wife's earning potential is expected to increase and again on a future date when wife is expected to begin receiving pension benefits. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

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E. Modification and Scope of Review.

That the court has continuing jurisdiction over the payment of alimony may be assumed as the settled law of this state. Zlaten v. Zlaten, 117 Colo. 296, 186 P.2d 583 (1947).

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 of 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).

A trial court may retain jurisdiction over maintenance if, at the time of permanent orders, an important future contingency exists that can be resolved in a reasonable and specific period of time, and if the court explicitly states its intent to reserve jurisdiction, describes the future event, and sets forth a reasonably specific future time within which maintenance may be considered. In re Folwell, 910 P.2d 91 (Colo. App. 1995).

The trial court erred in providing for future adjustments to maintenance. The assumptions made constitute improper speculation upon which to base future changes in maintenance. In re Folwell, 910 P.2d 91 (Colo. App. 1995).

In modifying provision for maintenance, burden is on party seeking modification to prove a substantial and continuing change of circumstances. Malmgren v. Malmgren, 628 P.2d 164 (Colo. App. 1981); In re DaFoe, 677 P.2d 426 (Colo. App. 1983).

Reconsideration of maintenance and attorney fees unnecessary absent contest. When neither party contests a trial court's 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's fees. In re Jones, 627 P.2d 248 (Colo. 1981).

Award of further maintenance upheld. The trial court neither abused its discretion nor exceeded its jurisdiction in awarding further maintenance to the wife where a separation agreement, having been incorporated into the divorce decree, became part of the final order when the decree was entered, and allowed a court to "review the issue" of spousal maintenance at end of six months. In re Sinn, 674 P.2d 988 (Colo. App. 1983); In re Woodman, 676 P.2d 1232 (Colo. App. 1983).

A provision of divorce decree retaining jurisdiction to award such alimony as may be just, did not alter the finality of that portion of the decree determining the rights and interests of the parties in real estate involved. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

Where it appeared from the record in a divorce case that both parties intended that a court retain jurisdiction of a question of permanent alimony and related matters after the entry of a final decree of divorce, orders entered determining such matters after entry of the decree were not void for want of jurisdiction. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

To correct an order for support directing payments in excess of defendant's ability to pay, required formal action by the one thus burdened, since to reduce support payments required by an order of the trial court necessitated a motion by him who sought relief. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).

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).

Awarding of attorney fees is discretionary with trial court and will not be disturbed on review if supported by the evidence. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982); In re DaFoe, 677 P.2d 426 (Colo. App. 1983).

Fixing permanent alimony, and readjusting a property settlement was a function of the trial court and could not be assumed by the supreme court. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959).

A trial court award to a plaintiff of permanent alimony was subject to review by a trial court in the event a changed condition arises. Nunemacher v. Nunemacher, 132 Colo. 300, 287 P.2d 662 (1955).

Limited consideration of a third party's resources, such as a current spouse's income, is not absolutely prohibited if the existence or use of such assets is directly relevant to an allegation by the payor spouse of a substantial and continuing change of circumstances. In re Bowles, 916 P.2d 615 (Colo. App. 1995).

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III. SEPARATE MAINTENANCE.

An allowance for separate maintenance was not alimony within the strict definition of that term. Weston v. Weston, 79 Colo. 478, 246 P. 790 (1926).

When an original divorce action was dismissed, the parties were still husband and wife, and the wife was at liberty to institute a separate maintenance action against the husband, just as though there had been no former litigation between the parties. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).

In determining the amount of support to be awarded in a separate maintenance action, the trial court could have considered the ability of the husband, the value of his estate; and his earning capacity, and adjudication could not result in appropriation of his entire estate or impoverishment to the extent of rendering him unable to maintain himself. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961); Fahey v. Fahey, 43 Colo. 354, 96 P. 251 (1908).

In a separate maintenance action only such alimony and support could be awarded as was necessary to adequately maintain a family in the manner to which it was accustomed and suitable to their station, and a husband could be divested of a reasonable proportion of his earnings and, if need be, of his property, that his wife and children could have reasonable support. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).

In all cases there was a factor to consider, and that was the ability of a husband and father to meet the reasonable needs of his wife and children. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

The purpose was not to enrich the wife, but to provide suitable support and maintenance for her, taking into consideration the manner in which she is accustomed to living with him, and his ability to provide support. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

A reasonable amount for her maintenance during coverture, or until reconciliation, estimated with reference to the means of her husband, and payable out of his estate, was the relief to which a wife was entitled, if the case made by her complaint should be established. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

In the absence of very special circumstances a lump-sum award could not be made in a separate maintenance suit, and the considerations which supported a lump-sum award or division of property in a divorce action that terminate property rights, were not present in separate maintenance suits where property rights were retained. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

It was an abuse of discretion, to award a wife the equivalent of one-third of the husband's estate, instead of a periodical payment for her support. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

Where trial court's errors in making its property division with respect to stock options, interspousal gifts to wife, and wife's interest in the family trust impacted a substantial portion of the total marital assets, on remand the trial court should reconsider its maintenance award in light of its new property division and in light of the significant decrease in the value of one of the parties' investment accounts. In re Balanson, 25 P.3d 28 (Colo. 2001).

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IV. ANTENUPTIAL AGREEMENT.

There is no statutory proscription against contracting for maintenance in an antenuptial agreement. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).

Separation agreements and antenuptial agreements are separate and distinct legal documents. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

Spouses-to-be have right to enter into antenuptial agreements which contemplate the possibility of dissolution. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

Antenuptial agreement no bar to maintenance unless specifically stated. In the absence of any reference in an antenuptial agreement to a relinquishment of the right to maintenance, the agreement does not bar the wife's claim for maintenance. In re Stokes, 43 Colo. App. 461, 608 P.2d 824 (1979).

Antenuptial agreement did not preclude an award of maintenance or reflect any waiver of maintenance by wife. In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Antenuptial maintenance agreement is subject to judicial scrutiny for conscionability. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

"Unconscionability", as applied to a maintenance agreement, exists when enforcement of the terms of the agreement results in a spouse having insufficient property to provide for his reasonable needs and who is otherwise unable to support himself through appropriate employment. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Maintenance agreement may become unconscionable because of circumstances at time of dissolution. Even though an antenuptial agreement is entered into in good faith, with full disclosure and without any element of fraud or overreaching, the maintenance provisions thereof may become voidable for unconscionability occasioned by circumstances existing at the time of the marriage dissolution. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

Burden of proof of unconscionability. One who claims that an antenuptial maintenance agreement is unconscionable must prove that at the time of the marriage dissolution the maintenance agreement rendered the spouse without a means of reasonable support, either because of a lack of property resources or a condition of unemployability. In re Newman v. Newman, 653 P.2d 728 (Colo. 1982).

Where antenuptial agreement was silent on matter of attorney fees, the awarding of such fees was controlled by § 14-10-119. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).


 

14-10-115 - Child support - guidelines - schedule of basic child support obligations - repeal.

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(1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the child's support and may order an amount determined to be reasonable under the circumstances for a time period that occurred after the date of the parties' physical separation or the filing of the petition or service upon the respondent, whichever date is latest, and prior to the entry of the support order, without regard to marital misconduct, after considering all relevant factors including:

(a) The financial resources of the child;

(b) The financial resources of the custodial parent;

(c) The standard of living the child would have enjoyed had the marriage not been dissolved;

(d) The physical and emotional condition of the child and his educational needs; and

(e) The financial resources and needs of the noncustodial parent.

(1.5) (a) For child support orders entered prior to July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:

(I) The parties agree otherwise in a written stipulation after July 1, 1991.

(II) If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen.

(III) If the child is still in high school or an equivalent program, support continues until the end of the month following graduation, unless there is an order for postsecondary education, in which case support continues through postsecondary education as provided in subparagraph (I) of paragraph (b) of this subsection (1.5). A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.

(b)

(I) If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child. In determining the amount of each parent's contribution to the costs of a program of postsecondary education for a child, the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section for the number of children receiving postsecondary education. The amount of contribution which each parent is ordered to pay pursuant to this paragraph (b) shall be subtracted from the amount of each parent's gross income, respectively, prior to calculating the basic child support obligation for any remaining children pursuant to subsection (10) of this section. In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child regardless of the age of the child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years. Either a child seeking an order for postsecondary education expenses or on whose behalf postsecondary education expenses are sought, or the parent from whom the payment of postsecondary education expenses are sought, may request that the court order the child and such parent to seek mediation prior to a hearing on the issue of postsecondary education expenses. Mediation services shall be provided in accordance with section 13-22-305, C.R.S. The court may order the parties to seek mediation if the court finds that mediation is appropriate. Postsecondary education includes college and vocational education programs. If such an order is entered, the parents shall contribute to the total sum determined by the court in proportion to their adjusted gross incomes as defined in subparagraph (II) of paragraph (a) of subsection (10) of this section. The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree. The court may order the support paid directly to the educational institution, to the child, or in such other fashion as is appropriate to support the education of the child. If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not in session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen. A child shall not be considered emancipated solely by reason of living away from home while in postsecondary education.

(II) If the court orders support pursuant to subparagraph (I) of this paragraph (b), the court or delegate child support enforcement unit may also order that the parents provide health insurance for the child or pay medical expenses of the child or both for the duration of such order. Such order shall provide that these expenses be paid in proportion to their adjusted gross incomes as defined in subparagraph (II) of paragraph (a) of subsection (10) of this section. The court or delegate child support enforcement unit shall order a parent to provide health insurance if the child is eligible for coverage as a dependent on that parent's insurance policy or if health insurance coverage for the child is available at reasonable cost.

(c) This subsection (1.5) shall apply to all child support obligations established or modified as a part of any proceeding, including but not limited to articles 5, 6, and 10 of this title and articles 4 and 6 of title 19, C.R.S., prior to July 1, 1997. This subsection (1.5) shall not apply to child support orders established on or after July 1, 1997, which shall be governed by subsection (1.6) of this section.

(c.5) An order for postsecondary education expenses entered between July 1, 1991, and July 1, 1997, may be modified pursuant to this subsection (1.5) to provide for postsecondary education expenses subject to the statutory provisions for determining the amount of a parent's contribution to the costs of postsecondary education, the limitations on the amount of a parent's contribution, and the changes to the definition of postsecondary education consistent with this section as it existed on July 1, 1994. An order for child support entered prior to July 1, 1997, that does not provide for postsecondary education expenses shall not be modified pursuant to this subsection (1.5).

(d) Postsecondary education support may be established or modified in the same manner as child support under this article.

(e) For the purposes of this section, "postsecondary education support" means support for the following expenses associated with attending a college, university, or vocational education program: Tuition, books, and fees.

(1.6) For child support orders entered on or after July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:

(a) The parties agree otherwise in a written stipulation after July 1, 1997.

(b) If the child is mentally or physically disabled, the court or the delegate child support enforcement unit may order child support, including payments for medical expenses or insurance or both, to continue beyond the age of nineteen.

(c) If the child is still in high school or an equivalent program, support continues until the end of the month following graduation. A child who ceases to attend high school prior to graduation and later reenrolls is entitled to support upon reenrollment and until the end of the month following graduation, but not beyond age twenty-one.

(1.7) Nothing in subsection (1.5) or (1.6) of this section shall preclude the parties from agreeing in a written stipulation or agreement on or after July 1, 1997, to continue child support beyond the age of nineteen or to provide for postsecondary education expenses for a child and to set forth the details of the payment of such expenses. If such stipulation or agreement is approved by the court and made part of a decree of dissolution of marriage or legal separation, the terms of such agreement shall be enforced as provided in section 14-10-112.

(2) (Deleted by amendment, L. 96 , p. 594, § 7, effective July 1, 1996.)

(3) (a) In any action to establish or modify child support, whether temporary or permanent, the child support guideline as set forth in this section shall be used as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guideline where its application would be inequitable, unjust, or inappropriate. Any such deviation shall be accompanied by written or oral findings by the court specifying the reasons for the deviation and the presumed amount under the guidelines without a deviation. These reasons may include, but are not limited to, the extraordinary medical expenses incurred for treatment of either parent or a current spouse, extraordinary costs associated with parenting time, the gross disparity in income between the parents, the ownership by a parent of a substantial nonincome producing asset, consistent overtime not considered in gross income under sub-subparagraph (C) of subparagraph (I) of paragraph (a) of subsection (7) of this section, or income from employment that is in addition to a full-time job or that results in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment. The existence of a factor enumerated in this section does not require the court to deviate from the guidelines, but is a factor to be considered in the decision to deviate. The court may deviate from the guidelines even if no factor enumerated in this section exists.

(b) (I) Stipulations presented to the court shall be reviewed by the court for approval. No hearing shall be required; however, the court shall use the guideline to review the adequacy of child support orders negotiated by the parties as well as the financial affidavit which fully discloses the financial status of the parties as required for use of the guideline.

(II) When a child support order is entered or modified, the parties may agree or the court may require the parties to exchange financial information, including verification of insurance and its costs, pursuant to paragraph (c) of subsection (7) of this section and other appropriate information once a year or less often, by regular mail, for the purpose of updating and modifying the order without a court hearing. The parties shall use the approved standardized child support guideline forms in exchanging such financial information. Such forms shall be included with any agreed modification or an agreement that a modification is not appropriate at the time. If the agreed amount departs from the guidelines, the parties shall furnish statements of explanation, which shall be included with the forms and shall be filed with the court. The court shall review the agreement pursuant to this subparagraph (II) and inform the parties by regular mail whether or not additional or corrected information is needed, or that the modification is granted, or that the modification is denied. If the parties cannot agree, no modification pursuant to this subparagraph (II) shall be entered; however, either party may move for or the court may schedule, upon its own motion, a modification hearing.

(III) Upon request of the noncustodial parent, the court may order the custodial parent to submit an annual update of financial information using the approved standardized child support guideline forms, including information on the actual expenses relating to the children of the marriage for whom support has been ordered. The court shall not order the custodial parent to update such financial information pursuant to this subparagraph (III) in circumstances where the noncustodial parent has failed to exercise parenting time rights or when child support payments are in arrears or where there is documented evidence of domestic violence, child abuse, or a violation of a restraining order on the part of the noncustodial parent. The court may order the noncustodial parent to pay the costs involved in preparing an update to the financial information. If the noncustodial parent claims, based upon the information in the updated form, that the custodial parent is not spending the child support for the benefit of the children, the court may refer the parties to a mediator to resolve the differences. If there are costs for such mediation, the court shall order that the party requesting the mediation pay such costs.

(c) The child support guideline has the following purposes:

(I) To establish as state policy an adequate standard of support for children, subject to the ability of parents to pay;

(II) To make awards more equitable by ensuring more consistent treatment of persons in similar circumstances; and

(III) To improve the efficiency of the court process by promoting settlements and giving courts and the parties guidance in establishing levels of awards.

(3.5) All child support orders entered pursuant to this article shall provide the social security numbers and dates of birth of the parties and of the children who are the subject of the order and the parties' residential and mailing addresses.

(4) The child support guideline does the following:

(a) Calculates child support based upon the parents' combined adjusted gross income estimated to have been allocated to the child if the parents and children were living in an intact household;

(b) Adjusts the child support based upon the needs of the children for extraordinary medical expenses and work-related child care costs;

(c) Allocates the amount of child support to be paid by each parent based upon physical care arrangements.

(5) The child support guideline shall be used with standardized child support guideline forms to be issued by the supreme court, which forms shall be periodically updated when necessary.

(6) The child support guideline may be used by the parties as the basis for periodic updates of child support obligations.

(7) Determination of income.

(a) For the purposes of the guideline specified in subsections (3) to (14) of this section, "income" means actual gross income of a parent, if employed to full capacity, or potential income, if unemployed or underemployed. Gross income of each parent shall be determined according to the following guidelines:

(I) (A) "Gross income" includes income from any source and includes, but is not limited to, income from salaries; wages, including tips declared by the individual for purposes of reporting to the federal internal revenue service or tips imputed to bring the employee's gross earnings to the minimum wage for the number of hours worked, whichever is greater; commissions; payments received as an independent contractor for labor or services; bonuses; dividends; severance pay; pensions and retirement benefits, including but not limited to those paid pursuant to article 64 of title 22, C.R.S., articles 51, 54, 54.5, 54.6, and 54.7 of title 24, C.R.S., and article 30 of title 31, C.R.S.; royalties; rents; interest; trust income; annuities; capital gains; any moneys drawn by a self-employed individual for personal use; social security benefits, including social security benefits actually received by a parent as a result of the disability of that parent or as the result of the death of the minor child's stepparent, but not including social security benefits received by a minor child or on behalf of a minor child as a result of the death or disability of a stepparent of the child; workers' compensation benefits; unemployment insurance benefits; disability insurance benefits; funds held in or payable from any health, accident, disability, or casualty insurance to the extent that such insurance replaces wages or provides income in lieu of wages; monetary gifts; monetary prizes, excluding lottery winnings not required by the rules of the Colorado lottery commission to be paid only at the lottery office; taxable distributions from general partnerships, limited partnerships, closely held corporations, or limited liability companies; and alimony or maintenance received. "Gross income" does not include child support payments received.

(B) "Gross income" does not include benefits received from means-tested public assistance programs, including but not limited to assistance provided under the Colorado works program, as described in part 7 of article 2 of title 26, C.R.S., supplemental security income, food stamps, and general assistance.

(C) "Gross income" includes overtime pay only if the overtime is required by the employer as a condition of employment. "Gross income" does not include income from additional jobs that result in the employment of the obligor more than forty hours per week or more than what would otherwise be considered to be full-time employment.

(II) (A) For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, "gross income" means gross receipts minus ordinary and necessary expenses required to produce such income.

(B) "Ordinary and necessary expenses" does not include amounts allowable by the internal revenue service for the accelerated component of depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.

(III) Expense reimbursements or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business shall be counted as income if they are significant and reduce personal living expenses.

(b) (I) If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income; except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a child under the age of thirty months for whom the parents owe a joint legal responsibility.

(I.5) If a noncustodial parent who owes past-due child support is unemployed and not incapacitated and has an obligation of support to a child receiving assistance pursuant to part 7 of article 2 of title 26, C.R.S., the court or delegate child support enforcement unit may order such parent to pay such support in accordance with a plan approved by the court or to participate in work activities. Work activities may include one or more of the following:

(A) Private or public sector employment;

(B) Job search activities;

(C) Community service;

(D) Vocational training; or

(E) Any other employment-related activities available to that particular individual.

(II) Repealed.

(III) For the purposes of this section, a parent shall not be deemed "underemployed" if:

(A) The employment is temporary and is reasonably intended to result in higher income within the foreseeable future; or

(B) The employment is a good faith career choice which is not intended to deprive a child of support and does not unreasonably reduce the support available to a child; or

(C) The parent is enrolled in an educational program which is reasonably intended to result in a degree or certification within a reasonable period of time and which will result in a higher income, so long as the educational program is a good faith career choice which is not intended to deprive the child of support and which does not unreasonably reduce the support available to a child.

(c) Income statements of the parents shall be verified with documentation of both current and past earnings. Suitable documentation of current earnings includes pay stubs, employer statements, or receipts and expenses if self-employed. Documentation of current earnings shall be supplemented with copies of the most recent tax return to provide verification of earnings over a longer period. A copy of wage statements or other wage information obtained from the computer data base maintained by the department of labor and employment shall be admissible into evidence for purposes of determining income under this subsection (7).

(d) The amount of child support actually paid by a parent with an order for support of other children shall be deducted from that parent's gross income. For the purposes of this section, "other children" means children who are not the subject of this particular child support determination.

(d.5) (I) At the time of the initial establishment of a child support order, or in any proceeding to modify a support order, if a parent is also legally responsible for the support of other children born prior to the children who are the subject of the child support order and for whom the parents do not share joint legal responsibility, an adjustment shall be made revising such parent's income prior to calculating the basic child support obligation for the children who are the subject of the support order if the children are living in the home of the parent seeking the adjustment or if the children are living out of the home, and the parent seeking the adjustment provides documented proof of money payments of support of those children. The amount shall not exceed the guidelines listed in this section. An amount equal to the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section which would represent a support obligation based only upon the responsible parent's gross income, without any other adjustments, for the number of such other children for whom such parent is also responsible shall be subtracted from the amount of such parent's gross income prior to calculating the basic child support obligation based on both parents' gross income as provided in subsection (10) of this section.

(II) The adjustment pursuant to this paragraph (d.5), based on the responsibility to support other children, shall not be made to the extent that the adjustment contributes to the calculation of a support order lower than a previously existing support order for the children who are the subject of the modification hearing at which an adjustment is sought.

(e) Repealed and deleted by amendment, L. 92, pp. 198, 166, § § 3, 1, effective August 1, 1992.

(8) Shared physical care. For the purposes of this section, "shared physical care" means that each parent keeps the children overnight for more than ninety-two overnights each year and that both parents contribute to the expenses of the children in addition to the payment of child support.

(9) Split physical care. For the purposes of this section, "split physical care" means that each parent has physical care of at least one of the children by means of that child or children residing with that parent the majority of the time.

(10) Basic child support obligations.

(a) (I) The basic child support obligation shall be determined using the schedule of basic child support obligations contained in paragraph (b) of this subsection (10). The basic child support obligation shall be divided between the parents in proportion to their adjusted gross incomes.

(II) (A) The category entitled "combined gross income" in the schedule means the combined monthly adjusted gross incomes of both parents. For the purposes of subsections (3) to (14) of this section, "adjusted gross income" means gross income less preexisting child support obligations and less alimony or maintenance actually paid by a parent. For combined gross income amounts falling between amounts shown in the schedule, basic child support amounts shall be extrapolated. The category entitled "number of children due support" in the schedule means children for whom the parents share joint legal responsibility and for whom support is being sought.

(B) Except as otherwise provided in sub-subparagraph (D) of this subparagraph (II), in circumstances in which the parents' combined monthly adjusted gross income is eight hundred fifty dollars or less, a child support payment of fifty dollars per month shall be required.

(C) Except as otherwise provided in sub-subparagraph (D) of this subparagraph (II), in circumstances in which the parents' combined monthly adjusted gross income is more than eight hundred fifty dollars, but in which the parent with the least number of overnights per year with the child has a monthly adjusted gross income of less than one thousand eight hundred fifty dollars, the court or delegate child support enforcement unit, pursuant to section 26-13.5-105 (4), C.R.S., shall perform a low-income adjustment calculation of child support as follows: The court or delegate child support enforcement unit shall determine each parent's monthly adjusted gross income, as that term is defined in sub-subparagraph (A) of this subparagraph (II). Based upon the parents' combined monthly adjusted gross incomes, the court or delegate child support enforcement unit shall determine the monthly basic child support obligation, using the schedule of basic child support obligations set forth in paragraph (b) of this subsection (10) and shall determine each parent's presumptive proportionate share of said obligation. The court or delegate child support enforcement unit shall then adjust the income of the parent with the fewest number of overnights per year with the child by subtracting nine hundred dollars from that parent's monthly adjusted gross income. The court shall multiply the resulting amount by a factor of forty percent. The product of the multiplication shall be added to the following basic minimum child support amount as additional minimum support, unless the product of the multiplication amount is zero or a negative figure, in which case the court shall add zero to the following basic minimum child support amount: Seventy-five dollars for one child; one hundred fifty dollars for two children; two hundred twenty-five dollars for three children; two hundred seventy-five dollars for four children; three hundred twenty-five dollars for five children; and three hundred fifty dollars for six or more children. The court or delegate child support enforcement unit shall compare the product of this addition to the parent's presumptive proportionate share of the monthly basic support obligation determined previously from the schedule of basic child support obligations. The lesser of the two amounts shall be the basic monthly support obligation to be paid by the low-income parent, as adjusted by the low-income parent's proportionate share of the work-related and education-related child care costs, health insurance, extraordinary medical expenses, and other extraordinary adjustments as described in subsections (11) to (13.5) of this section.

(D) In any circumstance in which the obligor's monthly adjusted gross income is less than eight hundred fifty dollars, regardless of the monthly adjusted gross income of the obligee, the obligor shall be ordered to pay fifty dollars per month in child support.

(E) The judge may use discretion to determine child support in circumstances where combined adjusted gross income exceeds the uppermost levels of the guideline; except that the presumptive basic child support obligation shall not be less than it would be based on the highest level of adjusted gross income set forth in the guideline.

(b) Schedule of basic child support obligations:


 
    Table 100: Colorado basic child support obligations

Combined

Gross

Income

Number of Children

One

Two

Three

Four

Five

Six or more

100

Order of $50 per month

200

300

400

500

600

700

800

850

184

269

319

352

382

409

900

193

282

334

369

400

428

950

202

294

349

386

418

447

1000

211

307

364

402

436

467

1050

220

320

379

419

455

486

1100

228

333

395

436

473

506

1150

237

346

410

453

491

525

1200

246

359

425

470

509

545

1250

255

372

440

487

528

565

1300

264

385

456

504

546

584

1350

273

397

471

520

564

603

1400

281

410

486

537

582

622

1450

290

422

500

553

599

641

1500

298

435

515

569

617

660

1550

307

447

530

586

635

679

1600

315

460

545

602

652

698

1650

324

472

559

618

670

717

1700

333

485

574

634

688

736

1750

341

497

589

651

705

755

1800

350

510

604

667

723

774

1850

358

522

619

683

741

793

1900

367

535

633

700

759

812

1950

375

547

648

716

776

830

2000

383

558

661

730

792

847

2050

391

570

674

745

807

864

2100

399

581

687

759

823

881

2150

407

592

700

774

839

898

2200

415

604

714

789

855

915

2250

423

615

727

803

871

931

2300

431

626

740

818

886

948

2350

439

638

753

832

902

965

2400

447

649

766

847

918

982

2450

455

660

779

861

934

999

2500

462

672

793

876

949

1016

2550

470

683

806

890

965

1033

2600

479

694

819

905

981

1050

2650

487

706

833

920

997

1067

2700

495

718

846

935

1013

1084

2750

503

729

859

950

1029

1101

2800

511

741

873

964

1045

1119

2850

519

752

886

979

1061

1136

2900

527

763

898

993

1076

1151

2950

533

772

910

1005

1089

1166

3000

540

782

921

1017

1103

1180

3050

547

792

932

1030

1116

1194

3100

554

801

943

1042

1130

1209

3150

560

811

954

1054

1143

1223

3200

567

821

965

1067

1156

1237

3250

574

831

977

1080

1171

1253

3300

581

841

989

1093

1185

1268

3350

589

851

1002

1107

1200

1284

3400

596

862

1014

1120

1214

1299

3450

603

872

1026

1133

1229

1315

3500

610

882

1038

1147

1243

1330

3550

617

892

1050

1160

1258

1346

3600

624

903

1062

1173

1272

1361

3650

631

913

1074

1187

1287

1377

3700

638

923

1086

1200

1301

1392

3750

645

934

1098

1214

1315

1408

3800

652

944

1110

1227

1330

1423

3850

660

954

1122

1240

1344

1439

3900

667

964

1135

1254

1359

1454

3950

673

973

1145

1266

1372

1468

4000

677

980

1153

1274

1381

1478

4050

682

987

1161

1283

1391

1488

4100

686

993

1169

1292

1400

1498

4150

691

1000

1177

1301

1410

1509

4200

695

1006

1185

1310

1420

1519

4250

700

1013

1193

1318

1429

1529

4300

704

1020

1201

1327

1439

1539

4350

708

1026

1209

1336

1448

1550

4400

713

1033

1217

1345

1458

1560

4450

717

1039

1225

1354

1467

1570

4500

722

1046

1233

1362

1477

1580

4550

726

1053

1241

1371

1486

1590

4600

731

1059

1249

1380

1496

1601

4650

735

1066

1257

1389

1505

1611

4700

739

1071

1262

1395

1512

1618

4750

742

1075

1267

1400

1517

1623

4800

745

1079

1271

1405

1523

1629

4850

748

1083

1276

1410

1528

1635

4900

751

1088

1280

1415

1533

1641

4950

755

1092

1285

1420

1539

1647

5000

758

1096

1289

1425

1544

1652

5050

761

1100

1294

1430

1550

1658

5100

764

1105

1298

1435

1555

1664

5150

768

1109

1303

1440

1560

1670

5200

771

1113

1307

1445

1566

1676

5250

774

1117

1312

1450

1571

1681

5300

777

1122

1316

1455

1577

1687

5350

781

1126

1321

1460

1582

1693

5400

784

1130

1326

1465

1588

1699

5450

787

1135

1331

1470

1594

1705

5500

790

1139

1336

1476

1600

1712

5550

792

1143

1341

1482

1606

1718

5600

795

1147

1346

1487

1612

1725

5650

798

1152

1351

1493

1618

1731

5700

801

1156

1356

1498

1624

1738

5750

804

1160

1361

1504

1630

1744

5800

807

1164

1365

1509

1636

1750

5850

809

1168

1370

1514

1641

1756

5900

812

1172

1375

1520

1647

1762

5950

815

1176

1380

1525

1653

1769

6000

818

1180

1385

1530

1659

1775

6050

820

1184

1390

1536

1664

1781

6100

823

1188

1394

1541

1670

1787

6150

826

1193

1400

1547

1677

1794

6200

831

1199

1407

1555

1686

1804

6250

836

1206

1415

1563

1695

1813

6300

840

1212

1422

1572

1704

1823

6350

845

1219

1430

1580

1713

1833

6400

849

1225

1437

1588

1722

1842

6450

854

1232

1445

1597

1731

1852

6500

858

1238

1452

1605

1740

1861

6550

863

1245

1460

1613

1749

1871

6600

868

1251

1467

1621

1758

1881

6650

872

1258

1475

1630

1767

1890

6700

877

1264

1482

1638

1775

1900

6750

882

1271

1491

1647

1785

1910

6800

887

1278

1499

1656

1795

1921

6850

892

1285

1507

1665

1805

1932

6900

897

1293

1515

1675

1815

1942

6950

902

1300

1524

1684

1825

1953

7000

907

1307

1532

1693

1835

1963

7050

912

1314

1540

1702

1845

1974

7100

917

1321

1549

1711

1855

 

7150

922

1328

1557

1720

1865

 

7200

927

1336

1565

1729

1875

 

7250

932

1343

1573

1738

1884

 

7300

937

1349

1581

1747

1893

 

7350

942

1356

1588

1755

1902

 

7400

946

1362

1596

1763

1912

 

7450

951

1369

1603

1772

1921

 

7500

955

1375

1611

1780

1930

 

7550

960

1382

1619

1789

1939

 

7600

965

1389

1626

1797

1948

 

7650

969

1395

1634

1805

1957

 

7700

974

1402

1641

1814

1966

 

7750

979

1408

1649

1822

1975

 

7800

983

1415

1657

1830

1984

 

7850

988

1422

1664

1839

1993

 

7900

993

1428

1672

1847

2002

 

7950

997

1435

1679

1856

2011

 

8000

1002

1441

1687

1864

2021

 

8050

1006

1448

1694

1872

2030

 

8100

1011

1454

1702

1881

2039

 

8150

1016

1461

1710

1889

2048

 

8200

1020

1468

1717

1898

2057

 

8250

1025

1474

1725

1906

2066

 

8300

1030

1481

1732

1914

2075

 

8350

1034

1487

1740

1923

2084

 

8400

1039

1494

1748

1931

2093

 

8450

1043

1501

1755

1939

2102

 

8500

1048

1507

1763

1948

2111

 

8550

1053

1514

1770

1956

2121

 

8600

1057

1520

1778

1965

2130

 

8650

1062

1527

1785

1973

2139

 

8700

1066

1533

1793

1981

2148

 

8750

1070

1539

1800

1989

2157

 

8800

1075

1546

1808

1998

2166

 

8850

1079

1552

1815

2006

2175

 

8900

1083

1558

1823

2014

2184

 

8950

1088

1565

1830

2023

2193

 

9000

1092

1571

1838

2031

2202

 

9050

1096

1577

1845

2039

2211

 

9100

1101

1583

1853

2048

2220

 

9150

1105

1590

1860

2056

2228

 

9200

1110

1596

1868

2064

2237

 

9250

1114

1602

1875

2072

2246

 

9300

1118

1609

1883

2081

2255

 

9350

1123

1615

1890

2089

2264

 

9400

1127

1621

1898

2097

2273

 

9450

1131

1628

1905

2106

2282

 

9500

1136

1634

1913

2114

2291

 

9550

1140

1640

1920

2122

2300

 

9600

1144

1647

1928

2130

2309

 

9650

1149

1653

1935

2139

2318

 

9700

1153

1659

1943

2147

2327

 

9750

1157

1666

1950

2155

2336

 

9800

1162

1672

1958

2164

2345

 

9850

1166

1678

1965

2172

2354

 

9900

1170

1685

1973

2180

2363

 

9950

1175

1691

1981

2188

2372

 

10000

1179

1697

1988

2197

2381

 

10050

1183

1703

1995

2204

2389

 

10100

1187

1709

2002

2212

2398

 

10150

1191

1715

2008

2219

2406

 

10200

1195

1720

2015

2227

2414

 

10250

1199

1726

2022

2234

2422

 

10300

1203

1732

2029

2242

2430

 

10350

1207

1738

2036

2250

2439

 

10400

1211

1744

2043

2257

2447

 

10450

1215

1749

2050

2265

2455

 

10500

1219

1755

2056

2272

2463

 

10550

1223

1761

2063

2280

2471

 

10600

1227

1767

2070

2288

2480

 

10650

1231

1773

2077

2295

2488

 

10700

1235

1778

2084

2303

2496

 

10750

1239

1784

2091

2310

2504

 

10800

1243

1790

2098

2318

2513

 

10850

1247

1796

2104

2325

2521

 

10900

1251

1802

2111

2333

2529

 

10950

1255

1808

2118

2341

2537

 

11000

1259

1813

2125

2348

2545

 

11050

1263

1819

2132

2356

2554

 

11100

1267

1825

2139

2363

2562

 

11150

1271

1831

2146

2371

2570

 

11200

1275

1837

2152

2378

2578

 

11250

1279

1842

2159

2386

2586

 

11300

1283

1848

2166

2394

2595

 

11350

1287

1854

2173

2401

2603

 

11400

1291

1860

2180

2409

2611

 

11450

1295

1866

2187

2417

2619

 

11500

1299

1871

2194

2424

2628

 

11550

1303

1877

2201

2432

2636

 

11600

1307

1883

2208

2440

2644

 

11650

1311

1889

2215

2447

2653

 

11700

1315

1895

2222

2455

2661

 

11750

1319

1900

2229

2463

2669

 

11800

1322

1906

2235

2470

2678

 

11850

1326

1912

2242

2478

2686

 

11900

1330

1918

2249

2486

2694

 

11950

1334

1923

2256

2493

2703

 

12000

1338

1929

2263

2501

2711

 

12050

1342

1935

2270

2508

2719

 

12100

1346

1940

2276

2515

2726

 

12150

1349

1945

2283

2522

2734

 

12200

1353

1951

2289

2529

2742

 

12250

1357

1956

2295

2536

2749

 

12300

1360

1961

2302

2543

2757

 

12350

1364

1967

2308

2551

2765

 

12400

1367

1972

2315

2558

2772

 

12450

1371

1977

2321

2565

2780

 

12500

1375

1983

2327

2572

2788

 

12550

1378

1988

2334

2579

2795

 

12600

1382

1993

2340

2586

2803

 

12650

1386

1998

2347

2593

2811

 

12700

1389

2004

2353

2600

2818

 

12750

1393

2009

2359

2607

2826

 

12800

1397

2014

2366

2614

2834

 

12850

1400

2020

2373

2622

2842

 

12900

1405

2026

2380

2630

2851

 

12950

1409

2032

2387

2638

2859

 

13000

1413

2038

2394

2646

2868

 

13050

1417

2044

2402

2654

2877

 

13100

1421

2050

2409

2662

2885

 

13150

1425

2056

2416

2670

2894

 

13200

1429

2062

2423

2678

2902

 

13250

1433

2068

2430

2685

2911

 

13300

1437

2074

2437

2693

2920

 

13350

1441

2080

2445

2701

2928

 

13400

1445

2086

2452

2709

2937

 

13450

1449

2092

2459

2717

2945

 

13500

1453

2098

2466

2725

2954

 

13550

1457

2104

2473

2733

2963

 

13600

1461

2110

2481

2741

2971

 

13650

1465

2116

2488

2749

2980

 

13700

1469

2122

2495

2757

2989

 

13750

1473

2128

2502

2765

2997

 

13800

1477

2134

2509

2773

3006

 

13850

1481

2140

2517

2781

3014

 

13900

1485

2146

2524

2789

3023

 

13950

1489

2152

2531

2797

3032

 

14000

1493

2158

2538

2805

3040

 

14050

1497

2164

2545

2813

3049

 

14100

1501

2170

2553

2821

3058

 

14150

1505

2176

2560

2829

3066

 

14200

1509

2181

2567

2836

3075

 

14250

1514

2187

2574

2844

3083

 

14300

1518

2193

2581

2852

3092

 

14350

1522

2199

2589

2860

3101

 

14400

1526

2205

2596

2868

3109

 

14450

1530

2211

2603

2876

3118

 

14500

1534

2217

2610

2884

3126

 

14550

1538

2223

2617

2892

3135

 

14600

1542

2229

2624

2900

3144

 

14650

1546

2235

2632

2908

3152

 

14700

1550

2241

2639

2916

3161

 

14750

1554

2247

2646

2924

3170

 

14800

1558

2253

2653

2932

3178

 

14850

1562

2259

2660

2940

3187

 

14900

1566

2265

2668

2948

3195

 

14950

1570

2271

2675

2956

3204

 

15000

1574

2277

2682

2964

3213

 

15050

1578

2283

2689

2972

3221

 

15100

1582

2289

2696

2980

3230

 

15150

1586

2295

2704

2987

3238

 

15200

1590

2301

2711

2995

3247

 

15250

1594

2307

2718

3003

3256

 

15300

1598

2313

2725

3011

3264

 

15350

1602

2319

2732

3019

3273

 

15400

1606

2325

2740

3027

3282

 

15450

1610

2330

2746

3034

3289

 

15500

1613

2334

2750

3039

3294

 

15550

1615

2338

2755

3044

3300

 

15600

1618

2342

2759

3049

3305

 

15650

1621

2346

2764

3054

3311

 

15700

1624

2350

2768

3059

3316

 

15750

1626

2353

2773

3064

3322

 

15800

1629

2357

2778

3069

3327

 

15850

1632

2361

2782

3074

3332

 

15900

1634

2365

2787

3079

3338

 

15950

1637

2369

2791

3084

3343

 

16000

1640

2373

2796

3089

3349

 

16050

1643

2377

2800

3094

3354

 

16100

1645

2381

2805

3099

3360

 

16150

1648

2385

2809

3104

3365

 

16200

1651

2389

2814

3109

3371

 

16250

1654

2392

2818

3114

3376

 

16300

1656

2396

2823

3119

3381

 

16350

1659

2400

2828

3124

3387

 

16400

1662

2404

2832

3129

3392

 

16450

1665

2408

2837

3134

3398

 

16500

1667

2412

2841

3140

3403

 

16550

1670

2416

2846

3145

3409

 

16600

1673

2420

2850

3150

3414

 

16650

1675

2424

2855

3155

3420

 

16700

1678

2428

2859

3160

3425

 

16750

1681

2431

2864

3165

3430

 

16800

1684

2435

2868

3170

3436

 

16850

1686

2439

2873

3175

3441

 

16900

1689

2443

2878

3180

3447

 

16950

1692

2447

2882

3185

3452

 

17000

1695

2451

2887

3190

3458

 

17050

1697

2455

2891

3195

3463

 

17100

1700

2459

2896

3200

3469

 

17150

1703

2463

2900

3205

3474

 

17200

1705

2467

2905

3210

3479

 

17250

1708

2471

2909

3215

3485

 

17300

1711

2474

2914

3220

3490

 

17350

1714

2478

2918

3225

3496

 

17400

1716

2482

2923

3230

3501

 

17450

1719

2486

2928

3235

3507

 

17500

1722

2490

2932

3240

3512

 

17550

1725

2494

2937

3245

3518

 

17600

1727

2498

2941

3250

3523

 

17650

1730

2502

2946

3255

3528

 

17700

1733

2506

2950

3260

3534

 

17750

1736

2510

2955

3265

3539

 

17800

1738

2513

2959

3270

3545

 

17850

1741

2517

2964

3275

3550

 

17900

1744

2521

2968

3280

3556

 

17950

1746

2525

2973

3285

3561

 

18000

1749

2529

2978

3290

3567

 

18050

1752

2533

2982

3295

3572

 

18100

1755

2537

2987

3300

3577

 

18150

1757

2541

2991

3305

3583

 

18200

1760

2545

2996

3310

3588

 

18250

1763

2549

3000

3315

3594

 

18300

1766

2552

3005

3320

3599

 

18350

1768

2556

3009

3325

3605

 

18400

1771

2560

3014

3330

3610

 

18450

1774

2564

3018

3335

3616

 

18500

1776

2568

3023

3340

3621

 

18550

1779

2572

3027

3345

3626

 

18600

1782

2576

3032

3350

3632

 

18650

1785

2580

3037

3355

3637

 

18700

1787

2584

3041

3360

3643

 

18750

1790

2588

3046

3365

3648

 

18800

1793

2592

3050

3370

3654

 

18850

1796

2595

3055

3376

3659

 

18900

1798

2599

3059

3381

3664

 

18950

1801

2603

3064

3386

3670

 

19000

1804

2607

3068

3391

3675

 

19050

1807

2611

3073

3396

3681

 

19100

1809

2615

3077

3401

3686

 

19150

1812

2619

3082

3406

3692

 

19200

1815

2623

3087

3411

3697

 

19250

1817

2627

3091

3416

3703

 

19300

1820

2631

3096

3421

3708

 

19350

1823

2634

3100

3426

3713

 

19400

1826

2638

3105

3431

3719

 

19450

1828

2642

3109

3436

3724

 

19500

1831

2646

3114

3441

3730

 

19550

1834

2650

3118

3446

3735

 

19600

1837

2654

3123

3451

3741

 

19650

1839

2658

3127

3456

3746

 

19700

1842

2662

3132

3461

3752

 

19750

1845

2666

3137

3466

3757

 

19800

1847

2670

3141

3471

3762

 

19850

1850

2674

3146

3476

3768

 

19900

1853

2677

3150

3481

3773

 

19950

1856

2681

3155

3486

3779

 

20000

1858

2685

3159

3491

3784

 

Editor's note: This version of paragraph (b) is effective January 1, 2003.

Top

(c) Basic child support obligation. Because shared physical care presumes that certain basic expenses for the children will be duplicated, an adjustment for shared physical care is made by multiplying the basic child support obligation by one and fifty one-hundredths (1.50).

(11) Child care costs.

(a) Net child care costs incurred on behalf of the children due to employment or job search or the education of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted gross incomes.

(b) Child care costs shall not exceed the level required to provide quality care from a licensed source for the children. The value of the federal income tax credit for child care shall be subtracted from actual costs to arrive at a figure for net child care costs.

(12) (Deleted by amendment, L. 96, p. 594, § 7, effective July 1, 1996.)

(13) Extraordinary adjustments to schedule.

(a) By agreement of the parties or by order of court, the following reasonable and necessary expenses incurred on behalf of the child shall be divided between the parents in proportion to their adjusted gross income:

(I) Any expenses for attending any special or private elementary or secondary schools to meet the particular educational needs of the child;

(II) Any expenses for transportation of the child, or the child and an accompanying parent if the child is less than twelve years of age, between the homes of the parents.

(III) (Deleted by amendment, L. 91, p. 234, § 1, effective July 1, 1991.)

(b) Any additional factors that actually diminish the basic needs of the child may be considered for deductions from the basic child support obligation.

(13.5) (a) Health care expenditures for children. In orders issued pursuant to this section, the court shall also provide for the child's or children's current and future medical needs by ordering either parent or both parents to initiate medical or medical and dental insurance coverage for the child or children through currently effective medical or medical and dental insurance policies held by the parent or parents, purchase medical or medical and dental insurance for the child or children, or provide the child or children with current and future medical needs through some other manner. At the same time, the court shall order payment of medical insurance or medical and dental insurance deductibles and copayments.

(b) Health insurance premiums. The payment of a premium to provide health insurance coverage on behalf of the children subject to the order shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross income.

(c) The amount to be added to the basic child support obligation shall be the actual amount of the total insurance premium that is attributable to the child who is the subject of the order. If this amount is not available or cannot be verified, the total cost of the premium should be divided by the total number of persons covered by the policy. The cost per person derived from this calculation shall be multiplied by the number of children who are the subject of the order and who are covered under the policy. This amount shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross incomes.

(d) After the total child support obligation is calculated and divided between the parents in proportion to their adjusted gross incomes, the amount calculated in paragraph (c) of this subsection (13.5) shall be deducted from the obligor's share of the total child support obligation if the obligor is actually paying the premium. If the obligee is actually paying the premium, no further adjustment is necessary.

(e) Prior to allowing the health insurance adjustment, the parent requesting the adjustment must submit proof that the child or children have been enrolled in a health insurance plan and must submit proof of the cost of the premium. The court shall require the parent receiving the adjustment to submit annually proof of continued coverage of the child or children to the delegate child support enforcement unit and to the other parent.

(f) Child residing in area not covered by health insurance policy. If a parent who is ordered by the court to provide medical or medical and dental insurance for the child or children has insurance that excludes coverage of the child or children because such child or children reside outside the geographic area covered by the insurance policy, the court shall order separate coverage for the child or children if the court determines coverage is available at a reasonable cost.

(g) Coverage for child's health insurance is an excessive amount of the order. Where the application of the premium payment on the child support guidelines results in a child support order of fifty dollars or less or the premium payment is twenty percent or more of the parent's gross income, the court or delegate child support enforcement unit may elect not to require the parent to include the child or children on an existing policy or to purchase insurance. The parent shall, however, be required to provide insurance when it does become available at a reasonable cost.

(h) Extraordinary medical expenses. (I) Any extraordinary medical expenses incurred on behalf of the children shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross incomes.

(II) Extraordinary medical expenses are uninsured expenses, including copayments and deductible amounts, in excess of two hundred fifty dollars per child per year. Extraordinary medical expenses shall include, but need not be limited to, such reasonable costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any uninsured chronic health problem. At the discretion of the court, professional counseling or psychiatric therapy for diagnosed mental disorders may also be considered as an extraordinary medical expense.

(14) Computation of child support.

(a) Except in cases of shared physical care or split physical care as defined in subsections (8) and (9) of this section, a total child support obligation is determined by adding each parent's respective obligations for the basic child support obligation, work-related net child care costs, extraordinary medical expenses, and extraordinary adjustments to the schedule. The parent receiving a child support payment shall be presumed to spend his or her total child support obligation directly on the children. The parent paying child support to the other parent shall owe his or her total child support obligation as child support to the other parent minus any ordered payments included in the calculations made directly on behalf of the children for work-related net child care costs, extraordinary medical expenses, or extraordinary adjustments to the schedule.

(b) In cases of shared physical care, each parent's adjusted basic child support obligation obtained by application of paragraph (c) of subsection (10) of this section shall first be divided between the parents in proportion to their respective adjusted gross incomes. Each parent's share of the adjusted basic child support obligation shall then be multiplied by the percentage of time the children spend with the other parent to determine the theoretical basic child support obligation owed to the other parent. To these amounts shall be added each parent's proportionate share of work-related net child care costs, extraordinary medical expenses, and extraordinary adjustments to the schedule. The parent owing the greater amount of child support shall owe the difference between the two amounts as a child support order minus any ordered direct payments made on behalf of the children for work-related net child care costs, extraordinary medical expenses, or extraordinary adjustments to schedule. In no case, however, shall the amount of child support ordered to be paid exceed the amount of child support that would otherwise be ordered to be paid if the parents did not share physical custody.

(c) (I) In cases of split physical care, a child support obligation shall be computed separately for each parent based upon the number of children living with the other parent in accordance with subsections (10), (11), (12), and (13) of this section. The amount so determined shall be a theoretical support obligation due each parent for support of the child or children for whom he or she has primary physical custody. The obligations so determined shall then be offset, with the parent owing the larger amount owing the difference between the two amounts as a child support order.

(II) If the parents also share physical care as outlined in paragraph (b) of this subsection (14), an additional adjustment for shared physical care shall be made as provided in paragraph (b) of this subsection (14).

(14.5) Dependency exemptions. Unless otherwise agreed upon by the parties, the court shall allocate the right to claim dependent children for income tax purposes between the parties. These rights shall be allocated between the parties in proportion to their contributions to the costs of raising the children. A parent shall not be entitled to claim a child as a dependent if he or she has not paid all court-ordered child support for that tax year or if claiming the child as a dependent would not result in any tax benefit.

(15) and (16) Repealed.

(16.5) In cases where the custodial parent receives periodic disability benefits granted by the federal "Old-age, Survivors, and Disability Insurance Act" on behalf of dependent children due to the disability of the noncustodial parent or receives employer-paid retirement benefits from the federal government on behalf of dependent children due to the retirement of the noncustodial parent, the noncustodial parent's share of the total child support obligation as determined pursuant to subsection (14) of this section shall be reduced in an amount equal to the amount of such benefits. Social security benefits received by the minor children, or on behalf of the minor children, as a result of the death or disability of a stepparent are not to be included as income for the minor children for the determination of child support. However, any social security benefits actually received by a parent as a result of the disability of that parent, or as the result of the death of the minor child's stepparent, shall be included in the gross income of that parent.

(17) This section shall apply to all child support obligations, established or modified, as a part of any proceeding, including, but not limited to, articles 5, 6, and 10 of this title and articles 4 and 6 of title 19, C.R.S., regardless of when filed.

(18) (a) The child support guidelines and general child support issues shall be reviewed and the results of such review and any recommended changes shall be reported to the governor and to the general assembly on or before December 1, 1991, and at least every four years thereafter by a child support commission, which commission is hereby created. As part of its review, the commission must consider economic data on the cost of raising children and analyze case data on the application of, and deviations from, the guidelines to be used in the commission's review to ensure that deviations from the guidelines are limited. In addition, the commission shall review issues identified in the federal "Personal Responsibility and Work Opportunity Reconciliation Act of 1996", Public Law 104-193, including out-of-wedlock births and the prevention of teen pregnancy. The child support commission shall consist of no more than twenty-one members. The governor shall appoint persons to the commission who are representatives of the judiciary and the Colorado bar association. Members of the commission appointed by the governor shall also include the director of the division in the state department of human services which is responsible for child support enforcement or his or her designee, a director of a county department of social services, the child support liaison to the judicial department, interested parties, a certified public accountant, and parent representatives. In making his or her appointments to the commission, the governor shall attempt to appoint persons as parent representatives or as other representatives on the commission who include a male custodial parent, a female custodial parent, a male noncustodial parent, a female noncustodial parent, a joint custodial parent, and a parent in an intact family. In making his or her appointments to the commission, the governor shall attempt to assure geographical diversity by appointing at least one member from each of the congressional districts in the state. The remaining two members of the commission shall be a member of the house of representatives appointed by the speaker of the house of representatives and a member of the senate appointed by the president of the senate and shall not be members of the same political party. Members of the child support commission shall not be compensated for their services on the commission; except that members shall be reimbursed for actual and necessary expenses for travel and mileage incurred in connection with their duties. The child support commission is authorized, subject to appropriation, to incur expenses related to its work, including the costs associated with public hearings, printing, travel, and research.

(b) (Deleted by amendment, L. 92, p. 188, § 1, effective August 1, 1992.)

(c) (Deleted by amendment, L. 91, p. 234, § 1, effective July 1, 1991.)

(d) (Deleted by amendment, L. 92, p. 188, § 1, effective August 1, 1992.)

(e) (Deleted by amendment, L. 94, p. 1536, § 5, effective July 1, 1994.)

(f) In reviewing the child support guidelines as required in paragraph (a) of this subsection (18), the child support commission shall study the following issues:

(I) The merits of a statutory time limitation or the application of the doctrine of laches or such other time-limiting provision on the enforcement of support judgments that arise pursuant to the provisions of section 14-10-122;

(II) Whether different time limitations on the enforcement of support judgments should apply depending on whether support payments are made directly to an obligee or whether such payments are made through the family support registry;

(III) The merits of support judgments arising automatically as provided in section 14-10-122 (1) (c); and

(IV) Whether support obligors should receive additional notice and an opportunity for hearing prior to execution on such judgments.

(19) The judicial department is responsible for promulgating and updating the Colorado child support guideline forms, schedules, and instructions.

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Source: L. 71: R&RE, p. 527, § 1. C.R.S. 1963: § 46-1-15. L. 85: (2) added, p. 592, § 10, effective July 1. L. 86: (3) to (16) added, p. 718, § 1, effective November 1. L. 87: (3)(b), (5), IP(7)(a), (10)(a), (11), and (12) amended, (7)(b)(II), (15), and (16) repealed, (7)(d), (7)(e), (10)(c), and (17) added, and (8), (9), (13), and (14) R&RE, pp. 587, 588, 600, 591, 589, § § 5, 7, 38, 9. 6, 8 effective July 10. L. 89: (7)(d.5) added and (17) amended, p. 792, § § 14, 15, effective July 1. L. 90: (18) added, p. 890, § 10, effective June 7; (7)(a)(I)(A), (7)(c), and (13)(a)(III) amended and (7)(b)(III) added, pp. 564, 890, 889, § § 35, 10, 9, effective July 1. L. 91: (18)(a) amended, p. 359, § 21, effective April 9; (1.5) added and (7)(b), (13), (14)(b), and (18) amended, p. 234, § 1, effective July 1. L. 92: (17) amended, p. 2171, § 18, effective June 2; (1.5)(b)(I), (2), (3)(a), (3)(b), (7)(a), (7)(e), (8), (10)(a)(II), (10)(c), (14)(c)(I), (18), and (18)(a) amended, (1.5)(d), (13.5), (14.5), and (16.5) added, (7)(e) repealed, and (10)(b) R&RE, pp. 166, 203, 188, 169, 198, 193, § § 1, 9, 2, 3, effective August 1. L. 93: (1.5)(b)(I) and (3)(b)(III) amended and (1.5)(e) added, pp. 1556, 577, § § 1, 7, effective July 1; (1.5)(b)(I), (2), and (10)(c) amended and (3.5) and (18)(e) added, pp. 1559, 1560, § § 7, 8, effective September 1. L. 94: (1.5)(b)(I), (1.5)(e), (7)(a)(I)(A), (7)(b)(III), (7)(d.5)(I), and (18)(e) amended, p. 1536, § 5, effective July 1; (18)(a) amended, p. 2645, § 107, effective July 1. L. 96: IP(1), (2), (3)(a), (3)(b)(II), (7)(a)(I)(A), (7)(a)(I)(C), (7)(b)(I), (10)(a)(II), (11)(a), (12), (13.5), and (16.5) amended, p. 594, § 7, effective July 1. L. 97: (1.5) amended and (1.6) and (1.7) added, p. 565, § 20, effective July 1; (1.5), (3.5), (7)(b), and (18)(a) amended and (1.6) and (1.7) added, pp. 1264, 1312, § § 8, 49, effective July 1; (5) and (17) amended, p. 561, § 5, effective July 1; (7)(a)(I)(B) amended, p. 1240, § 37, effective July 1. L. 98: (3)(a), (7)(d.5)(I), and (13)(a)(II) amended, p. 768, § 21, effective July 1; (7)(a)(I)(A) amended, p. 921, § 7, effective July 1; (4)(c), (8), (9), (10)(c), and (14) amended, p. 1398, § 42, effective February 1, 1999. L. 99: (3.5) amended, p. 1085, § 2, effective July 1; (7)(a)(I)(A) amended, p. 621, § 15, effective August 4. L. 2000: (18) amended, p. 1709, § 6, effective July 1. L. 2001: (18)(a) amended and (19) added, p. 721, § 4, effective May 31. L. 2002: (10)(a)(II), (10)(b), and (13.5)(h)(II) amended, p. 286, § 1, effective January 1, 2003.

Editor's note: Section 2 of chapter 104, Session Laws of Colorado 2002, provides that the act amending subsections (10)(a)(II), (10)(b), and (13.5)(h)(II) applies to actions to establish child support filed on or after January 1, 2003, and to motions for modification of child support filed on or after January 1, 2003.

Cross references: (1) For provisions concerning deductions for health insurance from wages due an obligor ordered to provide health insurance, see § 14-14-112. (2) For the legislative declaration contained in the 1993 act amending subsection (3)(b)(III), see section 1 of chapter 165, Session Laws of Colorado 1993; for the legislative declaration contained in the act amending subsection (18)(a), see section 1 of chapter 345, Session Laws of Colorado 1994; for the legislative declaration contained in the 1997 act amending subsections (1.5), (3.5), (7)(b), and (18)(a) and enacting subsections (1.6) and (1.7), see section 1 of chapter 236, Session Laws of Colorado 1997. (3) For the "Old-age, Survivors, and Disability Insurance Act", see 42 U.S.C. sec. 401 et seq.

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Analysis

I. General Consideration.
II. Duty of Support.
III. Award of Support.
A. Amount.
B. Discretion of Court.
C. Modification.
D. Termination upon Emancipation.
IV. Past Due Support.

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I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 1001-1046, 1079, 1080, 1082-1099, 1119.

C.J.S. See 27B C.J.S., Divorce, § § 665-693, 719-736.

Law reviews. For article, "What Really Happens in Child Support Cases: An Empirical Study of Establishment and Enforcement of Child Support Orders in the Denver District Court", see 57 Den. L.J. 21 (1979). 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, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Child Support Guidelines: Will They Cause More Problems Than They Cure?", see 15 Colo. Law. 408 (1986). For article, "Summary of the Report on the Colorado Commission Child Support and Proposed Child Support Guidelines", see 15 Colo. Law. 665 (1986). For article, "New Child Support Guideline Adopted", see 15 Colo. Law. 1662 (1986). For article, "Key Issues in the Colorado Child Support Guidelines", see 16 Colo. Law 51 (1987). For article, "Postsecondary Education Costs: Forging Through a Legislative Labyrinth", see 24 Colo. Law. 43 (1995). For article, "Calculating Income in Child Support Cases", see 25 Colo. Law. 53 (March 1996). For article, "Post-secondary Education Expenses: A Multi-tiered Approach", see 27 Colo. Law. 61 (January 1998).

Annotator's note. Since § 14-10-115 is similar to § 46-1-5 (1)(c), C.R.S. 1963, § 46-1-5, CRS 53, and CSA, C. 56, § 8, relevant cases construing those provisions have been included in the annotations to this section.

There may be a remedy for child support apart from a divorce action. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).

Duty of child support is independent, and is not limited to, entry of decree of dissolution. In re Price, 727 P.2d 1073 (Colo. 1986).

Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

Child has standing to seek support for herself under this section. In re Conradson, 43 Colo. App. 432, 604 P.2d 701 (1979).

Reasonable and necessary business expenses may be satisfied before support payment. Obligations relating to reasonable and necessary expenses associated with maintaining the structure and solvency of a business or the production of income can be satisfied before payment of child support. In re Crowley, 663 P.2d 267 (Colo. App. 1983).

Interest accrues on arrearages from the date each installment becomes due. In re Pote, 847 P.2d 246 (Colo. App. 1993).

Award of past pregnancy expenses and support. There is no jurisdiction under this section to award expenses incurred prior to the date of the filing of a motion for child support. In re Garcia, 695 P.2d 774 (Colo. App. 1984).

Reasonable to charge support against Colorado property of out-of-country father. Where the trial court ordered the father, who resides in Norway, to pay child support in a lump sum amount, and the court further ordered that such sum should be a charge against certain Colorado property interests of the father, such order was reasonable and not confiscatory. Berge v. Berge, 189 Colo. 103, 536 P.2d 1135 (1975).

Subsection (1.5)(a)(II) provides that emancipation occurs and an order for child support terminates when a child attains nineteen years of age, unless the child is then mentally or physically disabled and, if a child is physically or mentally incapable of self-support upon attaining majority at age 21, the duty of parental support continues for the duration of the disability. Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983); In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

Tax exemptions. Court has authority to divide tax exemptions between the parents. In re Berjer, 789 P.2d 468 (Colo. App. 1989); In re Nielson, 794 P.2d 1097 (Colo. App. 1990); In re Larsen, 805 P.2d 1195 (Colo. App. 1991).

Court must allocate dependency exemption between the parties based on their respective gross incomes. Federal tax law contemplates such an allocation, and does not preempt it. S.F.E. in Interest of T.I.E., 981 P.2d 642 (Colo. App. 1998).

When allocating tax exemptions between the parents, the phrase "contributions to the costs of raising the children" refers to the percentage of child support attributed to each parent in the course of making the child support computation. In re Staggs, 940 P.2d 1109 (Colo. App. 1997).

The trial court may consider the allocation of tax exemptions in a motion for modification. In re Oberg, 900 P.2d 1267 (Colo. App. 1994).

A parent may not be ordered to pay an ex-spouse child support amounts for a period prior to entry of a child support order. In re Pote, 847 P.2d 246 (Colo. App. 1993).

Husband's discovery request that wife list all gifts, including without limitation, jewelry, clothes, entertainment, travel, and restaurant meals provided to her or the children by her current husband; list all amounts paid by wife's current husband directly to wife or to other parties from which she received a benefit, including attorney's fees, maid service, cable television, mortgage payments, car and home repairs, insurance, and utilities; and list all assets purchased for which her current husband contributed, and husband's definition of "income" to include "all funds available for your use, including gifts" was significantly broader than the statutory definition of gross income, and therefore, denial of husband's motion to compel was proper. In re Seanor, 876 P.2d 44 (Colo. App. 1993).

Applied in Smith v. Casey, 198 Colo. 433, 601 P.2d 632 (1979); In re Hartford, 44 Colo. App. 303, 612 P.2d 1163 (1980); In re Dickey, 658 P.2d 276 (Colo. App. 1982); In re Steele, 714 P.2d 497 (Colo. App. 1985); In re Stone, 749 P.2d 467 (Colo. App. 1987).

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II. DUTY OF SUPPORT.

This section includes adopted children as well as natural children. In re Ashlock, 629 P.2d 1108 (Colo. App. 1981).

Absent a legal parent-child relationship, there is no duty to support a child under this section. In re Bonifas, 879 P.2d 478 (Colo. App. 1994).

Section contemplates a parent being responsible for the support of his children, not his former spouse, however reprehensible his behavior. Therefore it was error to award the reimbursement of mother's transportation costs as child care. In re Kluver, 771 P.2d 34 (Colo. App. 1989).

Child must reside and be supported by spouse granted custody and support. Wife who has been granted child custody is only entitled to support payments when the children were actually with her and supported by her. Brown v. Brown, 183 Colo. 356, 516 P.2d 1129 (1973).

This section contemplates that when in a divorce case, custody of a minor child is awarded to the wife, an order for its support may be made on the husband, and in proceeding to such order the court looks only to the future. Gourley v. Gourley, 101 Colo. 430, 73 P.2d 1375 (1937).

Where plaintiff alleged that defendant was the father of the minor children of the parties, but had failed and refused to support them, and that they were in need of support which he has the means and ability to provide, if established by evidence, plaintiff would be entitled to appropriate relief. Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594 (1961).

Person without funds or profitable employment not relieved of support obligation. Merely because a spouse desires to work on a long-range investment does not relieve him of his obligation to support his children, and the fact that a person is without funds and without profitable employment has been held not to preclude the allowance of reasonable alimony and support where nothing but a disinclination to work, regardless of the motive therefor, interferes with his ability to earn a reasonable living. Berge v. Berge, 33 Colo. App. 376, 522 P.2d 752 (1974), aff'd, 189 Colo. 103, 536 P.2d 1135 (1975).

Where the oldest of three children of the parties was living with father, the trial court did not abuse its discretion in declining to award plaintiff support money for all of the children, since such award would require defendant to pay twice for support of child in his custody. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962).

Custodial parent can be ordered to pay support to noncustodial parent under Uniform Dissolution of Marriage Act. In re Fest, 742 P.2d 962 (Colo. App. 1987).

In order for child support to be calculated according to shared physical custody, sufficient evidence must be submitted that each parent keeps the children overnight for more than twenty-five percent of the time and that both parents contribute to the expenses of the children in addition to the payment of child support. In re Redford, 776 P.2d 1149 (Colo. App. 1989).

There is no statutory requirement that any particular amount of expense be proven by the parent seeking a support adjustment for shared physical custody. In re Redford, 776 P.2d 1149 (Colo. App. 1989).

Application of shared custody formula that results in a support payment by the custodial parent to the noncustodial parent is not necessarily prohibited. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Where there was an absence of evidence from husband establishing that he contributed to the child's financial needs, there was no basis for application of the shared custody formula under worksheet B. In re Antuna, 8 P.3d 589 (Colo. App. 2000).

Where a mother removed her child from the state and deliberately concealed her whereabouts from the father, and by her affirmative acts voluntarily assumed responsibility for the child's support for a period of several years, during which time it appears that the child wanted for nothing necessary to health, comfort, and welfare, the mother was not in a position to claim reimbursement for such support. Griffith v. Griffith, 152 Colo. 292, 381 P.2d 455 (1963).

Where a father asserted that his right to direct and select the nature of the education of his son coexisted with the obligation to contribute to the costs of the education, it was held that it was for the divorced wife as custodian to make the decisions concerning the place and nature of the son's college education, subject only to the approval of the divorce court acting with due regard for the financial capabilities of the father. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

A divorced father did not have an absolute duty to pay for the college expenses of his minor child. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

When it had been properly demonstrated at trial that the welfare of the child would be served by further education at the college level, the father could properly be compelled to contribute to the costs of such education on a basis commensurate with the father's ability to pay until such time as the child attained majority or was otherwise emancipated. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

Award of retroactive child support is error. Since the court lacked proper jurisdiction to enter support orders until husband was personally served, its attempt to order retroactive child support was void. In re McKendry, 735 P.2d 908 (Colo. App. 1986).

Termination of support pursuant to decree. Absent a provision in the decree or a court order to the contrary, a father's duty to support pursuant to a decree which was paid to his ex-wife terminated with her death, although his common law and statutory duty of support continued. Application of Connolly, 761 P.2d 224 (Colo. App. 1988).

Phrase "each will contribute whatever may be necessary for the support of their children" creates a binding promise on part of father to contribute to children's financial support. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).

"Absolute requirement" or "necessary requirement" is not the appropriate standard to apply in determining whether private school was an appropriate placement for a child. The court should consider whether private schooling meets the child's particular educational needs. In re Eaton, 894 P.2d 56 (Colo. App. 1995).

A motion to quash subpoenas issued to third persons allegedly contributing to support of children was properly granted where the voluntary donations of such parties had nothing to do with a defendant's duty to support children. Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963).

Support for adult child. A dissolution action is a proper proceeding to enforce continued support of an adult child. Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983).

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III. AWARD OF SUPPORT.
A. Amount.

Law reviews. For article, "Calculation of Potential Income in Child Support Matters", see 20 Colo. Law. 233 (1991). For article, "Postsecondary Education Costs: Forging Through a Legislative Labyrinth", see 24 Colo. Law. 43 (1995).

Needs of the children are of paramount importance in determining child support obligations. Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973); In re Van Inwegen, 757 P.2d 1118 (Colo. App. 1988).

There is no mathematical formula for establishing a just and equitable property settlement or alimony or support. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

The guidelines for calculating child support require a court to calculate a monthly amount of child support based on the parties' combined adjusted gross income, adjust the child support based upon the needs of the children for extraordinary medical expenses and work-related child care costs, and allocate each parent's share based on the physical custody arrangements. In re Aldrich, 945 P.2d 1370 (Colo. 1997).

An award of alimony and child support should bear a reasonable relationship to the needs of a wife and children. Vines v. Vines, 137 Colo. 449, 326 P.2d 662 (1958).

Subsection (1)(a) authorizes the court to consider social security disability payments received on behalf of the children in calculating child support. In re Quintana, 30 P.3d 870 (Colo. App. 2001).

Subsection (1.5)(b)(I) does not require that expenses be absolutely necessary but only that they be reasonable. In re Eaton, 894 P.2d 56 (Colo. App. 1995); In re Elmer, 936 P.2d 617 (Colo. App. 1997).

Determination of conscionability of support provisions. To determine whether the child support provisions of a separation agreement which has been incorporated into a prior dissolution decree are fair, reasonable, and just, a trial court should consider and apply all the criteria provided by the general assembly for judicial evaluation of the provisions of property settlement agreements: the economic circumstances of the parties, § 14-10-112; the division of property, § 14-10-113(1); and the provisions for maintenance, § 14-10-114(1). In re Carney, 631 P.2d 1173 (Colo. 1981).

In determining whether the terms of the original child support decree have become unconscionable, the trial court should apply the criteria set forth in subsection (1). In re Hughes, 635 P.2d 933 (Colo. App. 1981); In re Gomez, 728 P.2d 747 (Colo. App. 1986).

In a divorce action, particularly with respect to the care, custody, and maintenance of minor children, the court, at the time of making an award for the minor children, was obligated to appraise conditions as they exist at the time of the presentation. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955); Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957); Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963); In re Serfoss, 642 P.2d 44 (Colo. App. 1981); In re McKendry, 735 P.2d 908 (Colo. App. 1986).

Parent's net income is primary consideration in determining support. With regard to a parent's ability to pay support for his child, net income after reasonable and justifiable business expenses should be the primary consideration. In re Crowley, 663 P.2d 267 (Colo. App. 1983).

The applicable rule of support ability is the father's ability to pay weighed against the reasonable needs of his children, because society does not require a father in poor or moderate circumstances to support children on a higher scale just because the family once so lived or because the mother may desire to so live after the divorce. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964).

In making its award of child support, a trial court must weigh the father's ability to pay against the reasonable needs of the children. Berge v. Berge, 33 Colo. App. 376, 522 P.2d 752 (1974), aff'd, 189 Colo. 103, 536 P.2d 1135 (1975).

Where the father's income, while substantial, is limited and subject to numerous demands, an order contemplating only the needs of the child and not bearing any relationship to the ability of the father to pay, and that could possibly become confiscatory of all of the father's available resources, is not valid. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

Finding as to earning capacity not confiscatory. Where the evidence supports the court's finding that the husband is capable of earning sums greatly in excess of his present net salary, although it appears that the court based its order on the present net income of the husband, the orders are not confiscatory. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).

Order that husband pay one-half of extraordinary medical and dental bills of the children, while unlimited as to amount or duration, was not confiscatory considering that the expenses were to be borne equally by each parent. In re Anderson, 37 Colo. App. 55, 541 P.2d 1274 (1975).

Factors considered in assessing propriety of child support provisions in separation agreement. In assessing the propriety of child support provisions in a separation agreement, the court must consider, in addition to unconscionability, other factors, such as the living standards the child would have enjoyed had the parties not dissolved the marriage and the physical and emotional well-being of the child. In re Brown, 626 P.2d 755 (Colo. App. 1981).

Child support obligations cannot be altered by agreement of the parents. Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973).

Child support cannot be based on financial resources of nonparent with whom child living. The factors to be considered in making a support award do not include the financial resources of a nonparent with whom the child is living. In re Conradson, 43 Colo. App. 432, 604 P.2d 701 (1979).

Estimates of children's expenses to be considered. A trial court should not determine the amount of child support to be paid by a husband based solely on some amount that it feels is commensurate with his income but should make the determination on evidence that includes estimates of the actual needs and expenses of the children involved. In re Berry, 660 P.2d 512 (Colo. App. 1983).

A court must consider and make findings concerning a reasonable pro rata portion of necessary general family expenses as "necessary for support of the child." In re Klein, 671 P.2d 1345 (Colo. App. 1983).

Standard of living employed in determination of child support. Where the evidence shows that the standard of living at the time of separation in all probability would have continued but for the dissolution, that is the standard of living the court must employ in its determination of child support. In re Klien, 671 P.2d 1345 (Colo. App. 1983).

This section does not require specific findings of fact concerning children's assets, but only that, before determining the amount of support to be paid by a parent, the court consider, among other things the financial resources of the child. In re Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1979).

Obligation of support not affected by gifts or transfers. The intent of the uniform act, § 11-50-101 et seq., is to allow custodians to disburse funds whether or not the children are adequately supported. Gifts under that act do nothing to relieve a parent of the separate duty to support the children, nor does that act authorize the custodian to disburse the funds as a means of fulfilling the parent's obligation of support. In re Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1979).

Where a parent or parents voluntarily make gifts to children during the parents' marriage and the gifts are not in fulfillment of a court order to pay support, and where the parents are, at the time of dissolution of the marriage, able to meet their support obligations, the court may order that such gifts not be used to reduce the legal obligation of support. This rule assumes that the court has properly considered the financial resources of the children as required by subsection (1), before ordering the amount of support to be paid by the parents. In re Wolfert, 42 Colo. App. 433, 598 P.2d 524 (1979).

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), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975).

Award of additional $6000 for "recreational opportunities" for children was fairly embraced within the factors to be considered by court in dividing marital property and did not create a separate "recreational fund" for the needs of the children in the nature of child support. In re Jackson, 698 P.2d 1347 (Colo. 1985).

The judgment in the divorce action did not determine the limits of the husband's obligation to support the children, and the children were not parties to that action, and their rights were not concluded thereby. Scheer v. District Court, 147 Colo. 265, 363 P.2d 1059 (1961).

Where there was no verification of the father's income as required by this section, the trial court was directed to take additional evidence to determine the income and to modify the support order. In re Velasquez, 773 P.2d 635 (Colo. App. 1989).

Trial court may draw inference that parent was concealing income, where parent refused to make a willing disclosure of financial status. In re Sgarlatti, 801 P.2d 18 (Colo. App. 1990).

Although the general assembly specifically provided for the use of extrapolation for combined gross income amounts falling between amounts shown in the guideline schedule, it did not provide for the use of extrapolation when combined gross incomes fall above or below the guideline schedule. In re Van Inwegen, 757 P.2d 1118 (Colo. App. 1988).

Section guidelines applicable in determination of amount of modified award despite fact that guidelines were enacted after the original support order. In re Anderson, 761 P.2d 293 (Colo. App. 1988).

Application of new child support guidelines resulting in more than a ten 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).

Imputing to voluntarily unemployed wife an income equal to income that of a person employed at the minimum wage even though evidence indicated that wife had been offered a higher paying job was not abuse of court's discretion given evidence of wife's ill health and problems in obtaining day care. In re Beyer, 789 P.2d 468 (Colo. App. 1989).

Imputing of full-time income to mother working part-time was error where mother did not voluntarily choose part-time employment but was required to stay home during the day to care for one of her children who had Downs syndrome. In re Pote, 847 P.2d 246 (Colo. App. 1993).

Court abused its discretion in finding that mother's underemployment was voluntary where mother worked only 32 hours per week so that she would have time to take the parties' child, who had cerebral palsy, to physical therapy. In re Foss, 30 P.3d 850 (Colo. App. 2000).

Interest was properly included in calculation of imputed income. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

"Overtime", in determination of parent's gross income (prior to 1996 amendment), does not include income from "extra" jobs. In re Marson, 929 P.2d 51 (Colo. App. 1996).

It was proper for the trial court to find that the overtime worked by father was required and to include such income within the father's gross income for the following reasons: (1) In his position as equity owner, director, and officer of the family-owned corporation, he was his own supervisor; (2) the evidence established, and the court found, that his position as vice-president and job-site foreman required that he work more than other employees as evidenced by his own testimony that his job as foreman could not always be done in a forty-hour week; and (3) the evidence established that the reason the father was required to work twenty to twenty-five hours of overtime per week was to assure that the jobs for which he was responsible would be completed in a timely fashion in order to avoid penalties that would work a direct financial disadvantage to the father. In re Rice and Foutch, 987 P.2d 947 (Colo. App. 1999).

Section imposes no burden on one parent to prove that an available job exists for the other parent. Rather, the determination of income hinges on the ability of the parent to perform work. In re Mackey, 940 P.2d 1112 (Colo. App. 1997).

Court is merely required by subsection (7)(b)(I) to determine potential income and statute imposes no burden on one parent to prove that an available job exists for the other parent or that a particular job is available. In re Bregar, 952 P.2d 783 (Colo. App. 1997).

The court must make findings sufficient to support a determination of underemployment. Imputing support without factual findings supporting a determination of underemployment is in error. In re Martin, 42 P.3d 75 (Colo. App. 2002).

Father not underemployed where mother presented no evidence that employment at income previously earned by father was available to him, no evidence of alternative employment at a higher level of remuneration than he presently earned, and no evidence that support to the children had been unreasonably reduced. In re Campbell, 905 P.2d 19 (Colo. App. 1995).

Trial court properly found father was voluntarily underemployed where father, a licensed attorney, had opted for inactive status and worked seasonally for an apple orchard at $10 per hour. In re Elmer, 936 P.2d 617 (Colo. App. 1997).

Trial court properly declined to find that father was voluntarily unemployed or underemployed where he voluntarily refused to file a claim for damages resulting from a work-related accident. In re England, 997 P.2d 1288 (Colo. App. 1999).

The trial court erroneously computed child support by relying solely upon the husband's income and disregarding the wife's statutory obligation to contribute to the child's support. If both parents have actual income, or a reasonable ability to earn income, it is erroneous as a matter of law to allocate the support obligation to one parent. In re Sewell, 817 P.2d 594 (Colo. App. 1991).

In computing child support, the trial court erred in failing to consider either the wife's income as represented by the monthly maintenance award or her ability to earn income from the marital property distributed to her under the court's decree. In re Sewell, 817 P.2d 594 (Colo. App. 1991).

For purposes of child support, father's income, as derived from the exercise of stock options, is limited to the difference between his purchase price of the optioned stock and the price at which he then sold it. In re Campbell, 905 P.2d 19 (Colo. App. 1995).

Court should initially include the amount of a capital gain as a component of gross income for the year in which the gain was received. Thereafter, the court has authority to deviate from the child support guidelines if their application would be inequitable, unjust, or inappropriate. In re Zisch, 967 P.2d 199 (Colo. App. 1998).

When considering capital gains from the sale of property awarded in a property division, the court shall include in gross income only those capital gains realized from post-property division appreciation in the property. In re Upson, 991 P.2d 341 (Colo. App. 1999).

Husband's taxable distributions from a subchapter S corporation owned wholly by him and two partners, one of whom had left, while not properly considered as extra income, should have been included as gross income, less ordinary and necessary business expenses. In re Upson, 991 P.2d 341 (Colo. App. 1999).

In determining monthly child support obligation for the period following the year in which a capital gain is received, the court should impute as income to the party a rate of return that the net capital gain, after taxes, can reasonably be expected to generate. In re Zisch, 967 P.2d 199 (Colo. App. 1998).

Subsection (7)(a) does not provide for deduction of federal and state income taxes in computing gross income, including from lottery winnings, for purposes of calculating child support. In re Bohn, 8 P.3d 539 (Colo. App. 2000).

The amount received as gross income from lottery winnings is used to calculate child support for the year in which the income is received. Thereafter, if a parent invests a portion of the funds which were received as income in one year, any interest earned in the subsequent years is properly included as gross income for purposes of calculating child support in those years. In re Bohn, 8 P.3d 539 (Colo. App. 2000).

Income from an irrevocable trust of which wife was beneficiary should not be omitted from wife's gross income for purposes of calculating child support, even though the trial court correctly declined to treat the income as property subject to division. In re Pooley, 996 P.2d 230 (Colo. App. 1998).

If a parent is voluntarily unemployed or underemployed, child support must be based on the parent's potential income. While a parent is entitled to remain underemployed, the other parent's child support obligation may not be increased as a result. In re Mackey, 940 P.2d 1112 (Colo. App. 1997).

The magistrate did not err is imputing to the father the annual income he had earned prior to his resignation. The evidence amply supports the magistrate's determination that the father quit his job because he won the lottery, that he was physically capable of working but was voluntarily unemployed, and that his decision to resign from his job was not a good faith career choice. In re McCord, 910 P.2d 85 (Colo. App. 1995).

Mother's decision to accept travel agency job, rather than to collect unemployment benefits until she found a higher paying job, was a good faith career choice and she therefore was not voluntarily underemployed. In re McCord, 910 P.2d 85 (Colo. App. 1995).

Trial court has the prerogative to determine that husband's decision to leave the practice of law and pursue cattle ranching does not fit the exceptions set forth in subsection (7)(b)(III)(B), where husband argued the change was a good faith career choice, was not intended to reduce the support available to his children, and did not unreasonably reduce support. In re Bregar, 952 P.2d 783 (Colo. App. 1997).

"Support available to a child" in subsection (7)(b)(III)(B) is not synonymous with "basic child support obligation" elsewhere in this section. "Basic child support obligation", as defined in subsection (10), typically involves consideration of both parties' respective incomes. "Support available to a child" in subsection (7)(b)(III)(B), however, focuses on the career decision and any associated income change of the putatively underemployed parent that affects his or her ability to provide child support. People ex rel. Cerda v. Walker, 32 P.3d 628 (Colo. App. 2001).

Thus, if the mother has improved her ability to provide child support, it does not necessarily mean that the father's voluntary underemployment did not unreasonably reduce his ability to provide child support. Because both parents have a duty to support a child to the best of their abilities, an increase in one parent's ability to provide child support cannot serve as justification for the other parent's unreasonable reduction in his or her ability to provide child support. People ex rel. Cerda v. Walker, 32 P.3d 628 (Colo. App. 2001).

In computing parental income for purposes of establishing child support payments, child support for other dependents which a parent is legally obligated to pay, shall be deducted, and such deduction is not limited to amounts actually paid pursuant to such obligation. In re Eze, 856 P.2d 75 (Colo. App. 1993).

The intent of this section is that a parent who is legally responsible for the support of other children be given a deduction, within statutory guidelines, for child support actually paid, regardless whether an order for that support had been entered. Thus, when a prior support order does not reflect the parent's full legal responsibility for support, the parent is entitled to a deduction under paragraph (d.5) of subsection (7), instead of under paragraph (d), in determining the parent's gross income. In re K.M.T., 33 P.3d 1276 (Colo. App. 2001).

Adequate proof of child support obligations actually paid for other dependents is required when computing parental income for the purpose of establishing child support for present dependents. In re Dickson, 983 P.2d 44 (Colo. App. 1998).

"Maintenance actually paid by a parent", as used in subsection (10)(a)(II), includes payments made by a parent to a former spouse. It is not limited to payments made to the mother of the child in the paternity proceedings before the court; it includes all maintenance payments made by a parent. In Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994).

The court must consider the father's and the child's financial resources in addition to considering the mother's resources in deciding the appropriate amount of the parents' contributions to the child's college expenses. In re Eaton, 894 P.2d 56 (Colo. App. 1995) (decided under law in effect prior to 1993 amendment).

Court did not err in including $350 rent in father's gross income without excluding allowable business deductions since record revealed nothing to warrant reversal of the trial court's implicit determination that any claimed expenses were not necessary or required to produce the rental income in question. In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

Once the requisites for shared physical custody have been established, subsection (10)(c) requires that the child support obligation be adjusted by the mathematical formula contained in subsection (14)(b). In re Redford, 776 P.2d 1149 (Colo. App. 1989).

If trial court deviates from the guidelines, it is required to make findings that application of the guidelines would be inequitable and specifying the reasons for the deviation. Thus, when court deviated from guidelines, it was required to find either that one of the relevant factors in subsection (1) applied or that the husband did not make contributions to the child's expenses beyond what he was obligated to pay in child support. In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990).

Modification of award required where trial court deviates from guidelines but fails to make findings required by subsection (3)(a). In re Sgarlatti, 801 P.2d 18 (Colo. App. 1990).

Trial court must make provision for expense of transportation of child between homes of parents, which expense is to be divided between parents in proportion to their adjusted gross income. In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990); In re Sgarlatti, 801 P.2d 18 (Colo. App. 1990).

Trial court did not err in including transportation expenses in the child support calculation before those expenses were actually known since there was no dispute as to the parents' income and the magistrate was free to adopt the percentage share of the father's income as shown in the father's computation . In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

Husband's personal injury settlement payments are a financial resource that constitutes "gross income" under the child support guidelines. In re Fain, 794 P.2d 1086 (Colo. App. 1990).

For investments, income is limited to the gain on the original investment. However, a party's characterization of payments as a return on investment is not binding on the court. In re Laughlin, 932 P.2d 858 (Colo. App. 1997).

Trial court did not err in using a two-year average of father's investment income when calculating father's overall income for the purposes of calculating child support. In re Rice and Foutch, 987 P.2d 947 (Colo. App. 1999).

No error in the trial court's conclusion that father's "actual gross income" included interest or dividends which had accrued to his IRA but which he had not withdrawn. The use of the word "actual" in subsection (7)(a) does not limit gross income to that "actually received". In re Tessmer, 903 P.2d 1194 (Colo. App. 1995).

Extraordinary medical expenses were required to be divided between the parties in direct proportion to their adjusted gross income and added to the basic child support, even where the child's condition existed and was known at the time of the original agreement where the parties agreed to each pay one-half of these expenses. In re Nielsen, 794 P.2d 1097 (Colo. App. 1990).

Meaning of "adjusted gross income". Definition of "adjusted gross income" in subsection (10)(a) does not provide for the deduction of federal and state income taxes or FICA taxes in computation for child support purposes. In re Baroni, 781 P.2d 191 (Colo. App. 1989).

The fact that certain items may be deductible on a party's federal income tax return does not require exclusion from gross income under the child support guideline. In re Eaton, 894 P.2d 56 (Colo. App. 1995).

Trial court did not err in determining that "gross income" included the foreign service premium, the commodities and services allowance, and the expatriate tax equalization payment made to compensate person for the cost of living in a foreign locale. In re Stress, 939 P.2d 500 (Colo. App. 1997).

Meaning of "extraordinary medical expenses". Extraordinary medical expenses, as defined in subsection (12)(b) of this section, must be "uninsured". Where psychological counseling services were insured expenses under the father's medical insurance plan, trial court erred in requiring him to pay for child's counseling by a psychologist not participating in the plan absent a finding that such counseling was not adequately or reasonably covered by the plan. In re Ahrens, 847 P.2d 257 (Colo. App. 1993).

Basic allowance for quarters (BAQ) constitutes an in-kind payment that is income for child support purposes. In re Long, 921 P.2d 67 (Colo. App. 1996).

Increased cost for the addition of teenage son to automobile insurance is not an extraordinary expense under subsection (13). In re Long, 921 P.2d 67 (Colo. App. 1996).

Court does not have authority to impute a gross income where actual income is tax exempt. Rather the amount received each month shall be deemed to be a gross income. In re Fain, 794 P.2d 1986 (Colo. App. 1990).

"Gross" income for purposes of calculating child support can include the amount of income an asset could reasonably be expected to generate even if that asset has been consumed prior to the support determination. In re Laughlin, 932 P.2d 858 (Colo. App. 1997).

The burden is upon the parent contesting the support order to prove that a deviation from the presumptive award is both reasonable and necessary. In re Baroni, 781 P.2d 191 (Colo. App. 1989).

No automatic adjustment of gross income for non-ordered support. Non-ordered child support payments to others are not to be determined by a mechanical application of the child support schedule. Rather the impact of payment of non-ordered obligations must be evaluated as provided in subsection (3)(a) of this section. People in Interest of C.D., 767 P.2d 809 (Colo. App. 1989).

Party alleging that payment of non-ordered support obligation requires deviation from presumptive award determined under statutory guidelines has burden to prove the claim. Deviation from guidelines must be shown reasonable and necessary considering certain enumerated factors. People in Interest of C.D., 767 P.2d 809 (Colo. App. 1989).

An agreement of the parties regarding child support, custody, and visitation does not bind the court, and the court must review child support guidelines to determine the adequacy of the child support agreement of the parties. In re Micaletti, 796 P.2d 54 (Colo. App. 1990).

Trial court's apportionment of costs for child's guardian ad litem upheld where court apportioned costs between mother and father on the basis of the underemployed mother's potential income. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).

Specific written or oral findings must be made by the court to support deviation from the child support amounts specified by the statutory schedule, and this applies to approving a stipulation of the parties. In re Miller, 790 P.2d 890 (Colo. App. 1990); In Interest of D.R.V., 885 P.2d 351 (Colo. App. 1994).

Where the parties' gross income exceeded the uppermost level of income scheduled in the guidelines and the minimum child support amount is presumed to be set forth in the highest level in the guidelines, this presumption may be rebutted, and the court must exercise discretion considering the financial resources of both parents and the children, the physical and emotional condition of the children and their educational needs, the needs of the noncustodial parent, and the standard of living that the children would have enjoyed had the parents' marriage not been dissolved. In re Schwaab and Rollins, 794 P.2d 1112 (Colo. App. 1990); In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd in part and rev' d in part on other grounds, 25 P.3d 28 (Colo. 2001).

Where parties' gross income exceeded the uppermost level of income in the guidelines, trial court was required to calculate the minimum presumptive amount of support and, in addition, translate the children's higher standard of living into specific monetary requirements. In re Bookout, 833 P.2d 800 (Colo. App. 1990), cert. denied, 846 P.2d 189 (Colo. 1993).

There is a rebuttable presumption that the basic child support obligation at the upper level of the guidelines is the minimum presumptive amount of support. Where father won five million dollars in the Colorado state lottery and the parties' adjusted gross incomes thereafter exceeded the uppermost levels of the guidelines, the court remanded the case for a redetermination of child support. In re Foss, 30 P.3d 850 (Colo. App. 2000).

Where parties' income exceeded the highest combined gross income level set out in the guidelines, the gross disparity in their incomes may explain the initial basis for deviation by the court, but additional findings concerning the needs of the children must be entered to establish the amount of deviation ordered. In re Upson, 991 P.2d 341 (Colo. App. 1999).

Because the children's needs are of paramount importance in determining the child support obligation, in calculating the appropriate amount of child support, the court should look at, among other things, the costs of food, shelter, clothing, medical care, education, and recreational costs at the level enjoyed before the dissolution. In re Schwaab and Rollins, 794 P.2d 1112 (Colo. App. 1990).

Viewing the statute as a whole, the means of meeting the "particular educational needs of a child" are not limited to providing private school only when a child has a learning disability or otherwise qualifies for a program of special education. In re Payan, 890 P.2d 264 (Colo. App. 1995).

Where the mother has sole custody of the three children, and there is a different visitation schedule for each child, in deciding whether the shared custody calculation for child support is applicable, the court must calculate the number of overnight stays for each child, divide each by three and total the results to determine the total amount of time the father spends with the children. If the cumulative number of overnights is less than 25 percent of the year, the shared custody calculation is inapplicable. In re Quam, 813 P.2d 833 (Colo. App. 1991).

Each parent in a dissolution proceeding has the obligation to support their children to the best of their abilities, and the court may determine that one parent's failure to find or keep a job is a voluntary refusal to carry out a support obligation. In re Nordahl, 834 P.2d 838 (Colo. App. 1992).

Costs of high school extracurricular activities such as cheerleading, driver's education, sports, and debate do not qualify as higher educational expenses under subsection (13) of this section. In re Ansay, 839 P.2d 527 (Colo. App. 1992).

Inclusion of ice skating fees in the support calculation as a reasonable and necessary expense was warranted. In re Laughlin, 932 P.2d 858 (Colo. App. 1997).

Trial court erred in ordering parent to pay percentage of children's estimated educational expenses without specifying sum to be paid. In re Pollock, 881 P.2d 470 (Colo. App. 1994).

Because of a lack of certainty of future bonuses, the court did not abuse its discretion in refusing to estimate the amount of any possible future bonuses for present support purposes. In re Finer, 920 P.2d 325 (Colo. App. 1996).

The trial court did not err in not considering income from the parties' mentally retarded adult son in calculating child support obligation. The trial court is not bound to deduct automatically the amount of a child's income from the basic child support obligation when that income does not reduce the need for parental support. In re Folwell, 910 P.2d 91 (Colo. App. 1995).

Trial court did not abuse its discretion setting appropriate amount of child support when it included the child's pro rata share of the standard and ongoing living expenses in wife's monthly needs. In re Balanson, 996 P.2d 213 (Colo. App. 1999), aff'd, 25 P.3d 28 (Colo. 2001).

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B. Discretion of Court.

Determination of child support is in the sound discretion of the trial court, and in the absence of an abuse of that discretion, not shown here, it will not be disturbed on review. Huber v. Huber, 143 Colo. 255, 353 P.2d 379 (1960); Brigham v. Brigham, 141 Colo. 41, 346 P.2d 302 (1959); Lanz v. Lanz, 143 Colo. 73, 351 P.2d 845 (1960); Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972); Ferguson v. Ferguson, Colo. App., 507 P.2d 1110 (1973); Berge v. Berge, 33 Colo. App. 376, 522 P.2d 752 (1974), aff'd, 189 Colo. 103, 536 P.2d 1135 (1975); In re Krise, 660 P.2d 920 (Colo. App. 1983); In re Garcia, 695 P.2d 774 (Colo. App. 1984); In re Pierce, 720 P.2d 591 (Colo. App. 1985).

Alimony, support, and property settlement issues were formerly considered together to determine whether the court had abused its discretion, and in making the determination, the court would consider a variety of factors, including whether the property was acquired before or after marriage, the efforts and attitudes of the parties towards its accumulation, the respective ages and earning abilities of the parties, the conduct of the parties during the marriage, the duration of the marriage, their stations in life, their health and physical condition, the necessities of the parties, their financial condition, and other relevant circumstances. Carlson v. Carlson, 178 Colo. 283, 497 P.2d 1006 (1972).

Court may consider only relevant provisions of section. In awarding child support, a trial court is obligated to consider only the relevant provisions of this section. It commits reversible error by considering matters related to adoption. In re Ashlock, 629 P.2d 1108 (Colo. App. 1981).

In granting a divorce a court has no authority under the statute to decree that a part of the property of the husband shall be the sole property of his children. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

The trial court was without authority to direct the husband to give to each of his children a share in a future estate which he may or may not acquire, because the obligation of the defendant is to provide reasonable support for his children according to their need, within the range of his ability, and a father of children is under no obligation to settle any property upon his children, or to deed them an interest in any asset; on the contrary he may by will or deed or other voluntary act disinherit a child if he sees fit to do so. Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328 (1967); Menor v. Menor, 154 Colo. 475, 391 P.2d 473 (1964).

Former husband may not discover the amount of former wife's current husband's income but may discover the existence of former wife's income in the form of regular payments made to the former wife by her current husband. In re Nimmo, 891 P.2d 1002 (Colo. 1995).

Although trial court abused its discretion in modifying child support and cause was remanded upon appeal, the trial court order for child support remained in full force and effect pending entry of a new support order. In re Van Inwegen, 757 P.2d 1118 (Colo. App. 1988).

Court improperly ordered noncustodial mother to make support payments when the court made a finding that the mother did not have the financial ability to pay child support. In re Jarman, 752 P.2d 1068 (Colo. App. 1988).

There is a rebuttable presumption in any action to establish or modify child support that $1,000 is the minimum presumptive amount of child support for one child when the parental combined income exceeds the uppermost levels of the guideline; however, the trial court may exercise its discretion and choose to set a different amount after consideration of all relevant factors. In re Van Inwegen, 757 P.2d 1118 (Colo. App. 1988).

As a matter of law, the trial court may not initially refuse to apply child support guidelines. In re Thornton, 802 P.2d 1194 (Colo. App. 1990).

Cost of a nanny may be included in the calculation of child support. S.F.E. in Interest of T.I.E., 981 P.2d 642 (Colo. App. 1998).

Trial court erred in failing to divide uninsured medical expenses in proportion to parents' adjusted gross incomes without making necessary findings to support deviation from guidelines. In re Pollock, 881 P.2d 470 (Colo. App. 1994).

The trial court exceeded its authority in ordering the husband to fund an educational trust for the benefit of the parties' son. The courts have been granted no authority to order the creation of a trust for the benefit of minor children. In re Sewell, 817 P.2d 594 (Colo. App. 1991).

Trial court did not abuse its discretion in ordering the husband to pay all college expenses of the parties' son. Use of word "divided" in subsection (13) of this section does not imply that both parents must contribute to each item of support; court is given discretion in subsection (1) to order "either or both" parents to pay support. In re Huff, 834 P.2d 244 (Colo. 1992) (decided under law in effect prior to enactment of subsection (1.5), dealing specifically with postsecondary education support).

Psychiatric therapy for child was properly included as an extraordinary medical expense in an order under this section. In re Elmer, 936 P.2d 617 (Colo. App. 1997).

Trial court erred in allocating to father all of child's travel expenses for visitation, rather than proportionately allocating them between the parties, in absence of finding that such allocation was appropriate. In re Elmer, 936 P.2d 617 (Colo. App. 1997).

Child support guideline does not provide for allocation between the parties of a parent's travel expenses. In re Elmer, 936 P.2d 617 (Colo. App. 1997).

Award constituted an application of, and not a deviation from, the guidelines where the evidence and the findings were sufficient to support only a partial offset of the child's income for her pro rata share of reasonable and necessary monthly expenses as well as the maintenance of a fund for vacations, one-time purchases, and other occasional expenses. In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

The burden is upon the parent contesting the support order to prove that a deviation from the presumptive award is both reasonable and necessary. In re Stress, 939 P.2d 500 (Colo. App. 1997).

Trial court did not abuse its discretion in finding that parent did not meet this burden. In re Stress, 939 P.2d 500 (Colo. App. 1997).

Trial court may deviate from the child support guidelines set forth in this section if the application of such guidelines would be inequitable, but if it does deviate, the court must make specific factual findings to support any deviation and failure to make such specific findings requires reversal. In re English, 757 P.2d 1130 (Colo. App. 1988); In re Hoffman, 878 P.2d 103 (Colo. App. 1994); In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

The trial court has discretion to deviate from the guidelines where justified, provided it makes appropriate findings. In re Thornton, 802 P.2d 1194 (Colo. App. 1990); In re Payan, 890 P.2d 264 (Colo. App. 1995).

Deviation from child support guidelines is not justified by hardship resulting solely from application of the guidelines, absent other unusual or unique financial circumstances. In re Thornton, 802 P.2d 1194 (Colo. App. 1990).

The finding that it is important for the child to spend extended time with mother is, in itself, irrelevant to the issue of whether there should be a deviation in child support. In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

A finding that one parent has a higher cost of living will not, in and of itself, ordinarily justify deviating from the guidelines. In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

Case remanded for reconsideration of deviation from guidelines based on new spouse's income under the guidelines in In re Nimmo, 891 P.2d 1002 (Colo. 1995). In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

Subsection (13) does not require an automatic adjustment to presumptive amount of child support but rather gives the trial court discretion to determine if an adjustment on account of a child's financial resources is appropriate. In re Thornton, 802 P.2d 1194 (Colo. App. 1990).

Application of child support guidelines establishes an amount of support that is presumed to be necessary to meet a child's needs; however, the extent to which an unemancipated child's income should be used to defray basic support obligations is within the trial court's discretion and depends upon the totality of circumstances in a particular case. In re Pollock, 881 P.2d 470 (Colo. App. 1994); In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

Trial court did not abuse its discretion in declining to include child's receipt of public support payments as income available to the child under subsection (13)(b). Such payments represent gratuitous contributions from the government and do not reduce the parent's duty to provide support. They are intended to supplement other income, not to substitute for it. In re Thornton, 802 P.2d 1194 (Colo. App. 1990).

But it is proper under subsection (13)(b) for the court to consider mother's receipt of social security disability payments on behalf of the children as an adjustment to child support because those payments actually diminished the children's basic needs. In re Quintana, 30 P.3d 870 (Colo. App. 2001).

Court is authorized under this section to calculate child support based on a determination of a parent's potential income if parent is voluntarily unemployed or underemployed. In re Marshall, 781 P.2d 177 (Colo. App. 1989), cert. denied, 794 P.2d 1011 (Colo. 1990).

Trial court did not abuse its discretion in reducing the father's amount of child support, where it found that the father was not voluntarily underemployed but had terminated his full time employment to return to college to obtain an advanced degree. In re Ehlert, 868 P.2d 1168 (Colo. App. 1994).

If a court determines that a parent engaged in a good faith effort to achieve higher income, financial independence, or a career in the foreseeable future, to impute income to that parent would unfairly penalize the parent's effort at self-sufficiency and would be contrary to the public policy of encouraging the financial independence of dependent spouses. In re Seanor, 876 P.2d 44 (Colo. App. 1993).

Wife was engaged in a good faith effort to achieve a college education in order to further her income position where the evidence showed she had not worked for approximately nine years and she had completed two years of study towards a bachelors degree in a three-year period, during which time she had achieved a 3.72 grade point average. She had not attended school the previous year because of the death of her current spouse's mother and the hospitalization and continued medical complications and concerns of one of the children. In re Seanor, 876 P.2d 44 (Colo. App. 1993).

Trial court properly determined that father, a convicted sex offender, was voluntarily underemployed. Although the conviction likely limited father's employment opportunities, father did not attempt to find gainful employment despite having an M.B.A. degree, a real estate broker's license, and many years of work experience. People ex rel. A.R.D., __ P.3d __ (Colo. App. 2001).

Extent to which a child's income and assets should be applied to the payment of educational expenses or basic support is a question of fact to be determined by the trial court under the totality of circumstances in each case. In re Barrett, 797 P.2d 848 (Colo. App. 1990); In re Pollock, 881 P.2d 470 (Colo. App. 1994).

The limit on postsecondary expenses is the amount calculated as if the child receiving such education had been the only child. Legislative history makes it clear that the 1994 amendment was intended to clarify rather than change the statute. In re Parker, 886 P.2d 312 (Colo. App. 1994).

Trial court did not abuse discretion in not deviating from the child support guidelines in order to avoid calculating child support based on IRA interest and dividends. In re Tessmer, 903 P.2d 1194 (Colo. App. 1995).

Absent a finding that a child has been diagnosed as having a mental disorder, a non-custodial parent cannot be required to share in the costs for therapy, whether such costs are included within the child support obligation or ordered to be paid separately. Absent the need for therapy because of a mental disorder, such cost must be borne by the party who makes the decision to provide the child with therapy. In re Finer, 920 P.2d 325 (Colo. App. 1996).

Applied in In re Rosser, 767 P.2d 807 (Colo. App. 1988).

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C. Modification.

The provisions of subsections (2) and (7)(e) of this section indicate that the general assembly did not intend to include health insurance premiums in the ordinary and necessary expenses covered by the basic child support obligation set forth in the guidelines; therefore, health insurance premiums paid by the father cannot be deducted from the total amount of the father's support obligation under the child support guidelines. In re English, 757 P.2d 1130 (Colo. App. 1988).

Where there was no evidence presented to establish the asserted extra cost of purchasing health insurance through the employment of the father's present spouse, there was no basis for the trial court to apply this section. In re Ansay, 839 P.2d 527 (Colo. App. 1992).

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).

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 this section, a subsequent court order specifying the amount need only conform with this section, rather than the modification requirements of § 14-10-122. In re Saiz, 634 P.2d 1020 (Colo. App. 1981).

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 at any time in a proper proceeding. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).

Trial court properly denied father's motion for modification, which was based solely on the 1993 statutory amendment to subsection (1.5)(b)(I) and which did not allege any substantial or continuing change in the parents' or the child's circumstances. In re Eaton, 894 P.2d 56 (Colo. App. 1995).

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. Thus, if child support is modified, the modification should be effective as of the date of filing of the request therefor. In re Mackey, 940 P.2d 1112 (Colo. App. 1997).

Any order reducing the amount of support money operated only in future. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864 (1961).

The proposition that future support payments could not be reduced as long as a husband was in default, even though a proper showing could be made of inability to pay, was not the law in Colorado. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964).

Parent's medical expenses relevant to modification as well as to initial determination of support. Where change in presumed support under guideline based on gross income is less than ten 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 parent's personal medical expenses. In re Ford, 851 P.2d 295 (Colo. App. 1993).

Deviation from the guidelines in calculating the basic child support obligation was error where court reasoned that father would not be able to support himself if required to pay the amount specified in the guidelines in light of his required contribution to the extraordinary medical expenses required by the child. In re Nielsen, 794 P.2d 1097 (Colo. App. 1990).

In circumstances where father is providing health insurance coverage for new spouse and father's other children living with him, in addition to child who is subject to order, the amount of the premium attributable to such child was "not available or cannot be verified" and trial court erred by refusing to allow the addition to the support obligation for a portion of that premium. In re Andersen, 895 P.2d 1161 (Colo. App. 1995).

Child's income may allow for a reduction of the support obligation if the court determines that it does "actually diminish basic needs" of child. In re Kluver, 771 P.2d 34 (Colo. App. 1989).

Mother's receipt of social security disability payments on behalf of the children actually diminished children's basic needs and court did not abuse its discretion by including the payments in the adjustment of the father's child support obligation. In re Quintana, 30 P.3d 870 (Colo. App. 2001).

Modification of award based on child's income for purposes of extraordinary educational expenditures or the satisfaction of basic needs is a question of fact to be determined under the totality of circumstances in each case. In re Barrett, 797 P.2d 848 (Colo. App. 1990).

A trial court is not bound to deduct automatically the entire amount of a child's income from his or her educational costs or basic support obligation but must look at the child's reduced need, if any, for parental support. In re Barrett, 797 P.2d 848 (Colo. App. 1990); In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

Trial court abused its discretion in refusing to deviate from a strict application of the guideline calculations for basic child support where certain expenses were shown to be duplicative. In re Barrett, 797 P.2d 848 (Colo. App. 1990).

The court did not err in denying a modification for contributions earned by the children where evidence showed that the older children did not receive any Pell grants toward their college expenses, and testimony regarding the additional expenses towards which the children put their earnings was sufficient for the court to determine that a reduction in the amount of support was not appropriate. In re Ansay, 839 P.2d 527 (Colo. App. 1992).

A trial court does not err if it requires parents who are legally responsible for support to contribute to a dependent child's needs in lieu of requiring the child to expend all of his or her own resources. In re Pring, 742 P.2d 343 (Colo. App. 1987); In re Cropper, 895 P.2d 1158 (Colo. App. 1995).

Child support obligations to children of a second marriage may be deducted from a parent's income when the court is considering a modification of child support ordered for children of a first marriage. In re Hannum, 796 P.2d 57 (Colo. App. 1990).

The allocation of tax exemptions may be considered when the court is considering a modification of child support. In re Oberg, 900 P.2d 1267 (Colo. App. 1994).

In considering a modification of child support, the trial court is bound by the facts and circumstances of the parents and the children as they exist at the time of the hearing. If there is a pending foreclosure sale, the court should await the sale's completion and complete its record on the amount of debt incurred before it determines the modification question. In re Kimbrough, 784 P.2d 852 (Colo. App. 1989).

Court did not violate prohibition against adjustment that results in support payments lower than previously existing support order under subsection (7)(d.5)(II) when the decrease in the husband's child support obligation was due solely to the switch to a shared custody child support calculation and a decrease in the wife's work-related child care expenses. The decrease was entirely unrelated to the income adjustment given to the wife for her after-born child. In re Martin, 910 P.2d 83 (Colo. App. 1995).

Court had authority to recalculate child support using a different worksheet than previously used. Once court gained jurisdiction to modify child support pursuant to the wife's motion, the court is not prohibited from utilizing the proper formula for such support, particularly when that formula was part of the same statute under which the wife filed her motion to modify. In re Martin, 910 P.2d 83 (Colo. App. 1995).

Rebuttable presumption of a change of circumstances existed under the child support guidelines where the parties changed custody of one of the minor children from the mother to the father. In re Miller, 790 P.2d 890 (Colo. App. 1990).

For purpose of calculating and modifying child support, trial court properly included in gross income of husband an amount which a one-time post-decree inheritance could be expected to yield, although calculation of such amount was incorrect. In re Armstrong, 831 P.2d 501 (Colo. App. 1992).

Trial court did not impermissibly interfere with husband's constitutional property rights by including in gross income an amount which a one-time post-decree inheritance received by husband could be expected to yield. In re Armstrong, 831 P.2d 501 (Colo. App. 1992).

Court did not make findings required by subsection (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).

Failure to submit financial information to the trial court and the failure of the trial court to review the modified agreement between the parties rendered the resulting trial court order subject to being set aside under C.R.C.P. 60 (b)(5). In re Smith, 928 P.2d 828 (Colo. App. 1996).

Court's award of income tax exemption to father in alternate years, as part of court's judgment on mother's motion to modify child support was supported by the record and complies with the requirements of this section. The court was not required to hold an additional hearing before amending the judgment when it had already heard testimony concerning the parties' incomes and had determined the percentage contribution of the parties to the costs of raising the child. The court could conclude on that record that father would receive a tax benefit from the exemption award. In Interest of A.R.W., 903 P.2d 10 (Colo. App. 1994).

Father's post-dissolution motion for reimbursement of previously paid child care expenses was properly denied. Reimbursement is not mandated under this section and the court has discretion whether to refer the parties to mediation. In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).

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D. Termination upon Emancipation.

The resolution of the question of emancipation was concerned more with the extinguishment of parental rights and duties than with the removal of the disabilities of infancy, and it occurred only when there was a complete severance of the filial tie, and the child's possession or lack of possession of the right to vote had little or no bearing on the determination as to whether such tie had or had not been severed. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

The enactment of the voting rights act of 1970, lowering the federal voting age to 18 years, did not emancipate a 20 year old son, as a matter of law. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

In Colorado, a person retains the status of minority until the age of 21 years, and that statutory definition is controlling as to the age at which emancipation occurs as a matter of law, except where otherwise provided by statute. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

In the absence of emancipation occurring upon attainment of majority, the question of whether a child was emancipated was essentially one of fact determinable by the trier of fact. Van Orman v. Van Orman, 30 Colo. App. 177, 492 P.2d 81 (1971).

Change in the age of emancipation and duty of support in this section did not automatically modify a parent's existing obligation of support which required obligor to pay support until child reached 21 years. In re Dion, 970 P.2d 968 (Colo. App. 1997).

The marriage of the minor daughter terminated the parental duty of support and no enforceable rights to support payments could thereafter accrue to the mother. Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970).

Support for dependent child after attainment of majority. This article gives the court jurisdiction to enter a decree for support of a dependent child of the marriage after attainment of majority. In re Koltay, 646 P.2d 405 (Colo. App. 1982), aff'd, 667 P.2d 1374 (Colo. 1983).

Once a child is over 21 and physically and mentally capable of self support, such child is not entitled to receive support payments from father, despite the fact that the child had an expectation of attending college had parents not divorced. Factors such as standard of living child would have enjoyed and educational needs can only be applied in determining child support if the child had not reached majority. In re Plummer, 735 P.2d 165 (Colo. 1987).

Express provision for post-emancipation support, where circumstances warrant, may be made in a decree entered before the child's twenty-first birthday. In such a case, factors such as standard of living and expectation of attending college may be considered. In re Huff, 834 P.2d 244 (Colo. 1992) (decided under law in effect prior to enactment of subsection (1.5), dealing specifically with postsecondary education support).

Provision for post-emancipation support may also be made by written agreement of the parties, as is indicated by reading this section together with § 14-10-122 (3). In re Huff, 834 P.2d 244 (Colo. 1992).

Meaning of "previously existing support order". An order entered October 22, 1993, nunc pro tunc August 12, 1993, made retroactive to August 1, 1992, modifying a March 1992 support order, is not a "previously existing support order" with regard to a modification of support to take into account a child born to the father and his new wife in December 1992, because it was not "previously existing" until it was actually entered by the court. In re Oberg, 900 P.2d 1267 (Colo. App. 1994).

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IV. PAST DUE SUPPORT.

Past due child support payments in themselves constitute debt. Colorado State Bank v. Utt, 622 P.2d 584 (Colo. App. 1980).

Amount owed may be garnished by bank which held judgment against former wife. Colorado State Bank v. Utt, 622 P.2d 584 (Colo. App. 1980).

It was not error to require a husband to pay arrears of support money for his minor children during the period of time the wife refuses him the right to visit the children, where no objection was made to the entry of such order. Hayes v. Hayes, 134 Colo. 315, 303 P.2d 238 (1956).

A trial court could not punish a father, delinquent in his child support payments through no fault of his own, by denying him visitation rights until he became current in his payments. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964).

A trial court was without authority to forgive delinquent payments of support money. Gier v. Gier, 139 Colo. 289, 339 P.2d 677 (1959); Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864 (1961); Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963).

Overpayments on child support made direct to one child could not be set off against accrued overdue installments which were owed to the mother on behalf of another child. Dorsey v. Dorsey, 28 Colo. App. 63, 470 P.2d 581 (1970).

The general rule was to the effect that when a father was required by a divorce decree to pay to the mother money for the support of their dependent children, and the unpaid and accrued installments became judgments in her favor, he could not, as a matter of law, claim credit on account of payments voluntarily made directly to the children, special considerations of an equitable nature could justify a court in crediting such payments on his indebtedness to the mother when that could be done without injustice to her. Dorsey v. Dorsey, 28 Colo. App. 63, 470 P.2d 581 (1970).


 

14-10-116 - Appointments in domestic relations cases - representation of child - special advocates.

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(1) The court may, upon the motion of either party or upon its own motion, appoint an individual for the parties' minor or dependent children or to assist the court in any domestic relations proceeding pursuant to subsection (2) of this section. The court shall set forth the duties of such individual in a written order of appointment, which order shall include a requirement that any attorney appointed pursuant to this section to serve as either a representative of the child or as a special advocate shall comply with the applicable provisions set forth in the chief justice directive 97-02, concerning the court appointment of guardians ad litem and other representatives and of counsel for children and indigent persons in titles 14, 15, 19 (dependency and neglect only), 22, and 27, C.R.S., and any subsequent chief justice directive or other practice standards established by rule or directive of the chief justice pursuant to section 13-91-105 (1) (a), C.R.S., concerning the duties or responsibilities of guardians ad litem and special advocates in legal matters affecting children. In no instance may the same person serve as both the child's representative pursuant to paragraph (a) of subsection (2) of this section and as the special advocate pursuant to paragraph (b) of subsection (2) of this section.

(2) The court may appoint either or both of the following:

(a) An individual to serve as a representative of the child. The individual shall be an attorney. The individual shall represent the best interests of the minor or dependent child, as that term is described in section 14-10-124, with respect to the child's custody, the allocation of parental responsibilities, support for the child, the child's property, parenting time, or any other issue related to the child that is identified in the court's order of appointment. The individual appointed shall actively participate in all aspects of the case involving the child, within the bounds of the law. Such attorney shall not be called as a witness in the case.

(b) An individual to serve as a special advocate. The special advocate may be, but need not be, an attorney. The special advocate shall investigate, report, and make recommendations on any issues that affect or may affect the best interests of the minor or dependent child as that term is described in section 14-10-124. The subject matter and scope of the special advocate's duties shall be clearly set forth in the court's order of appointment. Such duties shall include the requirement that the special advocate file a written report with the court. The special advocate shall make independent and informed recommendations to the court. While the special advocate shall consider the wishes of the child, the special advocate need not adopt such wishes in making his or her recommendations to the court unless they serve the child's best interests as described in section 14-10-124. The child's wishes, if expressed, shall be disclosed in the special advocate's report. The special advocate may be called to testify as a witness regarding his or her recommendations.

(3) The court shall enter an order for costs, fees, and disbursements in favor of the child's representative appointed pursuant to paragraph (a) of subsection (2) of this section or in favor of the special advocate appointed pursuant to paragraph (b) of subsection (2) of this section or both. The order shall be made against any or all of the parties; except that, if the responsible party is indigent, the costs, fees, and disbursements shall be borne by the state.

 

Source: L. 71: R&RE, p. 527, § 1. C.R.S. 1963: § 46-1-16. L. 73: p. 554, § 8. L. 93: Entire section amended, p. 577, § 8, effective July 1. L. 97: Entire section R&RE, p. 32, § 1, effective July 1. L. 98: (2)(a) amended, p. 1399, § 43, effective February 1, 1999. L. 2000: (1) amended, p. 1773, § 3, effective July 1.

Cross references: (1) For the duty of the public defender to represent indigents, see § § 21-1-103 to 21-1-104.

(2) For the legislative declaration contained in the 1993 act amending this section, see section 1 of chapter 165, Session Laws of Colorado 1993.

Law reviews. For article, "The Role of Children's Counsel in Contested Child Custody, Visitation and Support Cases", see 15 Colo. Law. 224 (1986). For article, "The Role of the Guardian ad Litem in Custody and Visitation Disputes", see 17 Colo. Law. 1301 (1988). For article, "Custody Cases and the Theory of Parental Alienation Syndrome", see 20 Colo. Law. 53 (1991). For article, "Final Draft of Proposed GAL Standards of Practice", see 22 Colo. Law. 1907 (1993). For article, "Child Custody: The Right Choice at the Right Price", see 26 Colo. Law. 67 (August 1997). For article, "Division of the GAL Role in Domestic Relations Cases", see 27 Colo. Law. 45 (April 1998). For article, "The Role of Guardian ad Litem: Changes in the Wind", see 27 Colo. Law. 73 (November 1998).

Annotator's note. The following annotations include cases decided under this section as it existed prior to its 1997 repeal and reenactment.

No right to participate through chosen counsel. This section does not include a right for a child to participate in custody matters through counsel chosen by the child. In re Hartley, 886 P.2d 665 (Colo. 1994).

Relationship between an attorney and child client differs from relationship between attorney and adult client. In re Hartley, 886 P.2d 665 (Colo. 1994).

Child's attorney acts both as guardian and as advocate, since child is not competent to make legally binding decisions. In re Hartley, 886 P.2d 665 (Colo. 1994).

Imposition of higher degree of objectivity on a child's attorney. An attorney appointed to represent a child in a custody dispute must present all evidence available concerning the child's best interests. The attorney's role is not simply to parrot the child's expressed wishes. In re Barnthouse, 765 P.2d 610 (Colo. App. 1988), cert. denied, 490 U.S. 1021, 109 S. Ct. 1747, 104 L. Ed.2d 184 (1989).

Quasi-judicial immunity. A court appointed guardian ad litem in service of the public interest in the welfare of children is entitled to absolute quasi-judicial immunity. Short by Ossterhous v. Short, 730 F. Supp. 1307 (D. Colo. 1990).

Attorney should practice in county of child's residence. If the court, in exercise of its discretion, appointed an attorney to represent these minor children, it is obvious that in terms of client access and the mitigation of expenses, any attorney so appointed should be practicing in the county where the child is residing. Bacher v. District Court, 186 Colo. 314, 527 P.2d 56 (1974).

Trial court's apportionment of costs for child's guardian ad litem upheld where court apportioned costs between mother and father on the basis of the underemployed mother's potential income. Weber v. Wallace, 789 P.2d 427 (Colo. App. 1989).

In a custody action, the attorney-client relationship with the child's mother is insufficient as a matter of law to impose a duty from the mother's attorneys to the child as if the child were a client. McGee v. Hyatt Legal Serv., Inc., 813 P.2d 754 (Colo. 1991).

Mere inability of parents to communicate is not a sufficient ground to continue the appointment of the GAL so that he may act as a mediator or facilitator for them beyond the entry of a final decree. In re Finer, 920 P.2d 325 (Colo. App. 1996).

Applied in In re Parker, 41 Colo. App. 287, 584 P.2d 103 (1978); In re Conradson, 43 Colo. App. 432, 604 P.2d 701 (1979); Deeb v. Morris, 14 B.R. 217 (D. Colo. 1981); In re Koltay, 646 P.2d 405 (Colo. App. 1982).


 

14-10-117 - Payment of maintenance or child support.

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(1) Upon its own motion or upon motion of either party, the court may at any time order that maintenance or child support payments be made to the clerk of the court or, if the executive director of the department of human services has notified the state court administrator that the judicial district issuing the order is ready to participate in the family support registry pursuant to section 26-13-114 (5), C.R.S., and, for payments for maintenance obligations, the family support registry is ready to accept maintenance payments, through the family support registry, as trustee, for remittance to the person entitled to receive the payments. The court may not order payments to be made to the clerk of the court once payments may be made through the family support registry. The payments shall be due on a certain date or dates of each month. If the support payments are required under this section, title 19, C.R.S., or section 26-13-114 (1), C.R.S., to be made through the family support registry, the court shall order that payments be made through the registry in accordance with the procedures specified in section 26-13-114, C.R.S.

(2) The clerk of the court shall maintain records listing the amount of payments, the date when payments are required to be made, and the names and addresses of the parties affected by the order for those payments he or she receives through the court registry.

(3) If payments are to be made through the family support registry, the parties affected by the order shall inform the family support registry, and if payments are to be made through the court registry, the parties affected by the order shall inform the clerk of the court of any change of address or of other conditions that may affect the administration of the order.

(4) (Deleted by amendment, L. 98, p. 756, § 6, effective July 1, 1998.)

(5) The district attorney shall assist the court on behalf of a person entitled to receive maintenance or support in all proceedings initiated under this section to enforce compliance with the order.

(6) If the person obligated to pay support has left or is beyond the jurisdiction of the court, the district attorney may institute any other proceeding available under the laws of this state for the enforcement of duties of support and maintenance.

(7) In cases in which a party is ordered to make payments through the court registry, upon receipt of a verified notice of a support obligation assigned to the state, the clerk of the court shall, without further action by the court, pay the support to the county child support enforcement unit rather than to the obligee. When the state no longer has authorization to receive any support payments, the county child support enforcement unit shall notify the clerk of the court to stop sending the support payments to the county and to send the support payments directly to the obligee.

 

Source: L. 71: R&RE, p. 527, § 1. C.R.S. 1963: § 46-1-17. L. 77: (4) amended, p. 824, § 1, effective May 24. L. 86: (1) amended, p. 724, § 2, effective July 1. L. 88: (7) added, p. 632, § 6, effective July 1. L. 90: (1) amended, p. 1414, § 13, effective June 8. L. 98: (1), (2), (3), (4), and (7) amended, p. 756, § 6, effective July 1. L. 99: (1) amended, p.1091, § 11, effective July 1.

Applied in Adams County Dept. of Social Servs. v. Frederick, 44 Colo. App. 378, 613 P.2d 642 (1980).

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14-10-118 - Enforcement of orders.

(1) Repealed.

(2) The court has the power to require security to be given to insure enforcement of its orders, in addition to other methods of enforcing court orders prescribed by statute or by the Colorado rules of civil procedure on or after July 6, 1973.

 

Source: L. 71: R&RE, p. 528, § 1. C.R.S. 1963: § 46-1-18. L. 73: p. 554, § 9. L. 81: (1) amended, p. 909, § 3, effective June 8. L. 82: (1) amended, p. 280, § 3, effective April 7. L. 87: (1) amended, p. 595, § 25, effective July 10. L. 92: (1) amended, p. 577, § 5, effective July 1. L. 93: (1) amended, p. 1871, § 5, effective June 6. L. 94: (1) amended, p. 1252, § 6, effective July 1. L. 96: (1) repealed, p. 598, § 8, effective July 1.

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I. General Consideration.
II. Security for Enforcement of Order.
III. Enforcement by Execution.
IV. Enforcement by Contempt.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 618, 881-883.

C.J.S. See 27B C.J.S., Divorce, § § 444, 474.

Law reviews. For article, "The Enforcement of Divorce Decrees in Colorado", see 21 Rocky Mt. L. Rev. 364 (1949).

Annotator's note. Since § 14-10-118 is similar to repealed § 46-1-5 (3), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The early law allowed the court to require husband to give security and permitted enforcement of decree in any manner consistent with rules and practice of court. Johnson v. Johnson, 22 Colo. 20, 43 P. 130 (1895).

Section provides only for issuance of temporary injunction. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).

C.R.C.P. 65 (h) grants authority to courts in dissolution proceedings to make prohibitive or mandatory orders as may be just. In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980).

Order to direct employer to withhold payments. This section does not preclude an order to the person obligated to pay support or maintenance to direct an employer to withhold child support or maintenance payments as they become due. In re McCue, 645 P.2d 854 (Colo. App. 1982).

Enforcement of agreement which did not specify dollar amount for child support is not modification of agreement. Agreement established duty on father to pay child support and it is within the discretion of the court to determine a reasonably necessary dollar amount. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).

Attorney fees. An award of attorney fees may not be enforced by an assignment under this section. In re McCue, 645 P.2d 854 (Colo. App. 1982).

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II. SECURITY FOR ENFORCEMENT OF ORDER.

The general assembly authorized a court to require security for the payment of alimony. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).

Security required by court must be reasonable in both amount and duration. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

If the amount ordered as security is greatly in excess of the amount actually owed, it is not security, but is confiscatory. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955); In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

It was held that the supreme court was fortified in limiting the court's authority to require security for the payment of alimony by reason of the fact that with respect to orders for the payment of sums required for the support and maintenance and education of the minor children of the parties, the general assembly had wisely enacted § 14-6-101 which made it a felony for a husband to neglect, fail or refuse to provide reasonable support and maintenance for his minor children under the age of 16 years, and a father who thus neglected to discharge his natural, as well as his statutory, duty to his children "shall be deemed guilty of a felony", and may be imprisoned for so doing unless he provided a bond conditioned upon the support of such children. Brown v. Brown, 131 Colo. 467, 283 P.2d 951 (1955).

The writ of ne exeat was not a form of security for the payment of alimony within the meaning of this section. Price v. Price, 80 Colo. 158, 249 P. 648 (1926).

Property lien authorized. A court may impose a lien on a party's property in order to enforce an agreement where the party has threatened to dispose of the property and put himself beyond the court's jurisdiction. In re Valley, 633 P.2d 1104 (Colo. App. 1981).

Amount and duration of security held unreasonable where court required replacement of any security used for payment of maintenance, and amount of security equaled the amount of maintenance awarded, and where there was no competent evidence supporting the amount required to be set aside as security for the payment of child support and health insurance. In re Jaeger, 883 P.2d 577 (Colo. App. 1994).

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III. ENFORCEMENT BY EXECUTION.

Mature installments of alimony under a divorce decree were final judgments, the payment of which the court could enforce by execution or imprisonment . Beardshear v. Beardshear, 143 Colo. 293, 352 P.2d 969 (1960); Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Paul v. Marty, 72 Colo. 399, 211 P. 667 (1922); Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926); Burke v. Burke, 127 Colo. 257, 255 P.2d 740 (1953).

Child support payment becomes money judgment when it matures. A child support payment under a decree for dissolution of marriage becomes a money judgment when it matures and may be enforced as other judgments without further action by the court. In re McCue, 645 P.2d 854 (Colo. App. 1982).

The judgments were enforceable during the entire period of the statute of limitations. Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960).

Action by a court, in the form of an order of entry of judgment, is a mandatory prerequisite to enforcement of child support obligations by means other than remedial contempt proceedings. People in Interest of G.S., 678 P.2d 1033 (Colo. App. 1983).

A husband was not prejudiced by the entering of a judgment for the correct total amount due under a divorce decree, as each installment which matures under a decree which had not been modified became a judgment debt similar to any other judgment for money. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).

A trial court had power, without previous notice to a husband, to enter judgment for any total arrears so that execution might issue thereon and the proceedings available to any judgment creditor could thereby be made available to the wife. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).

The trial court exceeded its jurisdiction in an order limiting the wife's right to collect her judgment on an arrearage, because the judgment entered was no different than any other money judgment, and the wife was entitled to levy execution on her judgment in the same manner as any other judgment creditor was entitled to collect on a judgment, and no authority empowered the trial court to enter an order authorizing a judgment creditor to parcel out payments in liquidating a judgment. Green v. Green, 168 Colo. 303, 451 P.2d 282 (1969).

Each installment of child support maturing under a decree which had not been modified became a judgment debt similar to any other judgment for money and retroactive modifications thereof could not be effected. Talbot v. Talbot, 155 Colo. 350, 394 P.2d 607 (1964); Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958); Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963).

Since past due installments for support money under a valid order constituted a debt and were in and of themselves judgment, a trial court had no power or authority to cancel such payments. Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971).

Since accrued installments of support or alimony were final judgments, the appropriate statute of limitations was that which pertained to judgments. Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960).

The defense of laches was not applicable in an action to enforce accrued child support payments ordered in a divorce action; it was applicable only where the attempted enforcement was by contempt proceedings. Carey v. Carey, 29 Colo. App. 328, 486 P.2d 38 (1971); Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958); Hauck v. Schuck, 143 Colo. 324, 353 P.2d 79 (1960).

A husband in default in the payment of support money was not entitled to notice of the entry of a judgment thereon. Jenner v. Jenner, 138 Colo. 149, 330 P.2d 544 (1958).

Assignment of wages is proper. An assignment of wages to satisfy a judgment for child support arrearages is proper. In re McCue, 645 P.2d 854 (Colo. App. 1982).

Order is analogous to garnishment. An order entered pursuant to subsection (1) is analogous to a garnishment and should be governed by applicable limitations on garnishment. In re McCue, 645 P.2d 854 (Colo. App. 1982).

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IV. ENFORCEMENT BY CONTEMPT.

A court may exercise its power of contempt to enforce orders entered in a dissolution of marriage proceeding. Gonzales v. District Court, 629 P. 2d 1074 (Colo. 1981).

Contempt not separate proceeding. Contempt for failure to comply with the court's orders is not a separate proceeding but a continuance of the dissolution action. Gonzales v. District Court, 629 P.2d 1074 (Colo. 1981).

The power to punish for contempt should be used with caution after due deliberation, and only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. Engleman v. Engleman, 145 Colo. 299, 358 P.2d 864 (1961).

Absent any procedural attempt to correct an order for support payments under this section, based upon its being founded in mistake, or absent action designed to seek modification of the order, the trial court could only determine whether the husband was in contempt for failure to comply with the order. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).

Moreover, a defendant could not be held in contempt for failure to pay alimony where it clearly appeared that he was unable to perform the acts required of him by the support order. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).

A defendant could not be imprisoned for failure to pay alimony where it clearly and satisfactorily appeared that he was absolutely unable to perform the acts required of him at the time the order of commitment was made. Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).

Where a divorced wife for a long period of time supported the minor child of herself and divorced husband without receiving or claiming the alimony adjudged her for its support, there being no sufficient cause shown for her delay in attempting to enforce payment, the doctrine of laches applied, and a judgment of contempt against defendant for failure to pay the alimony was reversed. Price v. Price, 80 Colo. 158, 249 P. 648 (1926).

The contention of defendant that an order abating the proceedings until he complied with an order of court for the payment of alimony deprived him of his right to make a defense, and that imprisonment for failure to comply with the order was in violation of his constitutional rights, was overruled. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).


 

14-10-119 - Attorney's fees.

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The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this article and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

 

Source: L. 71: R&RE, p. 528, § 1. C.R.S. 1963: § 46-1-19.

Cross references: For allowance of attorney fees generally, see Rules 3(a), 30(g), 37(a), 37(c), 56(g), and 107(d), C.R.C.P.; for awarding of attorney fees in civil actions generally, see § 13-17-102.

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I. General Consideration.
II. Award of Attorney Fees.

A. Right and Need for Award.

B. Amount.

C. Discretion of Court.

D. Enforcement.

E. Modification and Scope of Review.

III. Antenuptial Agreements.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 701-711.

C.J.S. See 27B C.J.S., Divorce, § § 343-368.

Law reviews. For note, "Payment of the Wife's Attorney Fee in Colorado Divorce Cases", see 34 Rocky Mt. L. Rev. 481 (1962). For article, "Attorney's Fees", see 11 Colo. Law. 411 (1982). For article, "Domestic Case Update", see 14 Colo. Law. 209 (1985). For article, "Attorney Fees at Temporary Orders: Reality or Illusion?", see 24 Colo. Law. 2185 (1995).

Annotator's note. Since § 14-10-119 is similar to repealed § 46-1-5 (1)(e), C.R.S. 1963, § 46-1-5, CRS 53, CSA, C. 56, § 8, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The former divorce act was silent on the subject of counsel fees and suit money, but in discussing the power of the district court to make allowance for these items, the supreme court held that notwithstanding the silence of the statute with respect to these matters, it had the authority to order such allowances because its jurisdiction as to such items did not depend upon the statute. Pleyte v. Pleyte, 15 Colo. 125, 25 P. 25 (1890); Hart v. Hart, 31 Colo. 333, 73 P. 35 (1903).

Attorneys' fees are not a non-challengeable marital debt under § 14-10-113. In re Rieger, 827 P.2d 625 (Colo. App. 1992).

Uniform Dissolution of Marriage Act provides separate sections that govern the different elements of a dissolution order, specifically property disposition, maintenance, child support, and attorney fees. The court is required to make separate orders regarding these elements based on separate considerations and may not commingle one element with another. In re Huff, 834 P.2d 244 (Colo. 1992).

This section inapplicable to wife's independent action seeking to reopen dissolution decree. In re Burns, 717 P.2d 991 (Colo. App. 1985); cert. denied, Burns v. Burns, 745 P.2d 1391 (Colo. 1987).

Intent to equalize status. The provision in the dissolution of marriage statute which sanctions the assessment of attorney fees was intended to equalize the status of the parties to the dissolution proceeding. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

The purpose of allowing the court discretion as to attorney fees is to equalize the status of the parties by enabling the court to ensure that neither party is forced to suffer unduly as a consequence of the termination of the marriage. In re Mitchell, 195 Colo. 399, 579 P.2d 613 (1978); In re Meisner, 715 P.2d 1273 (Colo. App. 1985).

This section is designed to allow the court to apportion costs and fees equitably between the parties. In re Nichols, 38 Colo. App. 82, 553 P.2d 77 (1976); In re Hauger, 679 P.2d 604 (Colo. App. 1984).

Attorney fees are to be awarded primarily to equalize the financial positions of the parties. In re Trout, 897 P.2d 838 (Colo. App. 1994); In re Bregar, 952 P.2d 783 (Colo. App. 1997).

The principle that in maintenance and divorce proceedings a wife had a right to be placed on an equal footing with her husband was particularly applicable where the facts show that the wife's absence from the state is due to being unable to afford the expenses of litigation without her fault, and where she may have meritorious claims difficult to pursue in absentia. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).

Fairness in domestic relations cases seeks to place the wife on a plane of equality with the husband in such litigation by allowing her suit money and attorney fees out of the husband's estate or earnings, where such appears necessary to bring about such parity, but such allowance will not be granted unless it is shown that the wife is destitute in whole or in part of the means necessary to maintain herself and carry on the litigation, and a concomitant to this condition for relief is a showing of the husband's present ability to pay such allowance. Peercy v. Peercy, 154 Colo. 575, 392 P.2d 609 (1964); Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961).

Provision in agreement granting parties remedies at law and in equity for enforcement of agreement gave court jurisdiction to hear motion for attorney fees. In re Meisner, 807 P.2d 1205 (Colo. App. 1990).

By the allowance of attorney fees, full and complete adjudication of all claims in the one action will result; otherwise, a multiplicity of suits will ensue, forcing the attorney to sue the wife, and she in turn to join the husband under his indemnity agreement. Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961).

The power of the court to allow attorney fees to the wife for the purpose of prosecuting her suit or defending the husband's suit was an incident to the court's powers to award alimony and divide property. Krall v. Krall, 31 Colo. App. 538, 504 P.2d 681 (1972).

If there is a wide disparity in the parties' earning capacities, an award of attorney fees is permissible. In re Renier, 854 P.2d 1382 (Colo. App. 1993).

An allowance for counsel fees, being for the benefit of the wife to put her in a position to litigate on the same footing as the husband, was made on the same basis as alimony or other forms of support by the husband to the wife. Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962).

The purpose of an award of attorney fees is to apportion equitably the costs of dissolution, based on the current resources of the parties. In re Renier, 854 P.2d 1382 (Colo. App. 1993); In re Foottit, 903 P.2d 1209 (Colo. App. 1995); In re Aldrich, 945 P.2d 1370 (Colo. 1997).

Waiver of attorney fee provision in an antenuptial agreement is voidable on the grounds of unconscionability. In re Dechant, 867 P.2d 193 (Colo. App. 1993) (decided under law in effect prior to amendment effective July 1, 1986).

The allowance to a wife was based upon the same underlying thought as is an allowance to her to buy food, shelter, and clothing. Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962).

Where an attorney withdrew as counsel for the wife in a divorce action and his motion for fees was ordered held in abeyance until final settlement of the action, a subsequent property settlement agreement providing that each of the parties would pay his own counsel fees was not binding on the counsel if services rendered prior to withdrawal entitled him to additional fees. Morrison v. Peck, 151 Colo. 83, 376 P.2d 58 (1962).

Reconciliation did not deprive the court of jurisdiction to award attorney fees. Pacheco v. Pacheco, 156 Colo. 356, 398 P.2d 978 (1965).

The trial court was in error when it concluded that it was without jurisdiction to grant an allowance of attorney fees. Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961).

On review of an order adjudging a defendant in a divorce case guilty of contempt for failure to pay alimony, under the facts disclosed, it was held that the trial court had jurisdiction to make an order allowing counsel fees to the wife for the hearing on review. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926); Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).

No violation of involuntary servitude proscription. The assertion in a divorce that one may be forced to work for the benefit of the other spouse's attorney, despite the fact that the burdened party is without "fault", cannot be equated with slavery or involuntary servitude within the meaning of § 26 of art. II, Colo. Const. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Because the dissolution of marriage statute, in an effort to eliminate the inequities resulting from the termination of the relationship, provides for attorney fees, as well as maintenance and child support, when the relative status of the parties involved indicates the need of such, it does not constitute involuntary servitude. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Applied in In re Deines, 44 Colo. App. 98, 608 P.2d 375 (1980); Gann v. Gann, 616 P.2d 1000 (Colo. App. 1980); In re Davis, 44 Colo. App. 355, 618 P.2d 692 (1980); In re Kiefer, 738 P.2d 54 (Colo. App. 1987).

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II. AWARD OF ATTORNEY FEES.
A. Right and Need for Award.

When a husband desires the luxury of a divorce from his wife, he should be compelled to pay the expenses of his wife pending the litigation, and, in cases where the wife is a nonresident of the state, if she desires to come to the state of Colorado to make a defense, she should be given an opportunity to do so, and the courts should require plaintiff to deposit in court a sum sufficient to pay the expenses of the wife from her home to the state of Colorado, to be paid to her upon her arrival here within a reasonable time, with such additional sum as may be necessary to properly defend the suit, and in case the plaintiff is unable to make reasonable provision for his wife during the pendency of the suit, the suit should be abated until he is able to do so. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).

On the question of allowance of attorney fees for the wife, the court should take into consideration, among other things, the financial condition of the parties, their income, and necessities of the case. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

In awarding fees and costs under this section, the district court must consider the relative financial status of each party by making findings concerning their relative incomes, assets, and liabilities. In re Aldrich, 945 P.2d 1370 (Colo. 1997).

The financial resources of the husband were greater than those of the wife and that disparity supports the order for attorney fees. In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).

An order providing for the father to pay attorney fees for the mother could not stand in view of the favorable financial condition of the mother, since the purpose of providing an allowance for attorney fees is to place the wife on an equal footing with the husband. Andrews v. Andrews, 161 Colo. 529, 423 P.2d 573 (1967).

Where defendant initiated the circumstances making attorney fees necessary, an allowance to plaintiff therefor was proper. Parker v. Parker, 142 Colo. 416, 350 P.2d 1067 (1960).

Where a wife's estate is small, she is not required to impair her capital in order to litigate properly her side of the controversy, especially is this true where the value of the assets of the parties are grossly disproportionate. Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970).

Additional expert testimony was unnecessary to support award of attorney's fees to mother in child support modification action where testimony of the mother, her attorney, and the attorney's affidavit adequately supported the award. In re Pollock, 881 P.2d 470 (Colo. App. 1994).

Husband is not liable for deceased wife's attorney fees where the wife dies during the pendency of the action and prior to the entry of an order making permanent property disposition. In re Benjamin, 740 P.2d 532 (Colo. App. 1987).

A spouse who accepts maintenance payments or an attorney fees award is not precluded from appealing such order. In re Lee, 781 P.2d 102 (Colo. App. 1989).

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B. Amount.

This section cannot be construed as a general grant of authority to determine the amount of fees to which an attorney is entitled. In re Nichols, 38 Colo. App. 82, 553 P.2d 77 (1976).

The trial court's duty is to determine what reasonable fee a party should be responsible for under all the circumstances of the case. The effect of an order granting fees to a party less than the amount actually billed by the attorney is not to modify the fee contract between the attorney and client. In re Seely, 689 P.2d 1154 (Colo. App. 1984); In re Bowles, 916 P.2d 615 (Colo. App. 1995).

Predicate to an award of attorney fees. There must be proof of reasonableness premised upon considerations of the amount of the fees charged, the time spent by the attorney, the services rendered, and the prevailing rates in the community. In re Sarvis, 695 P.2d 772 (Colo. App. 1984).

On application for allowance of attorney fees in a divorce suit, it may be that no evidence is required as to the amount to be allowed, where all the facts are within the knowledge of the court. Miller v. Miller, 79 Colo. 609, 247 P. 567 (1926).

Where the same judge had heard various aspects of this case over a period of several months and was thoroughly familiar with the file and with the financial resources of the parties, it was not necessary that evidence be presented as to the current situation unless there was a claim of change of circumstances. In re Peterson, 40 Colo. App. 115, 572 P.2d 849 (1977).

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C. Discretion of Court.

Before or after the issuance of a decree in a divorce action, the trial court could make such orders as the circumstances warrant for suit money, court costs, and attorney fees. Morrison v. Peck, 151 Colo. 83, 376 P.2d 58 (1962).

The allowance of attorney fees and suit money is within the sound discretion of the trial court, and unless that discretion has been abused, the allowance made or denied will not be disturbed. Krall v. Krall, 31 Colo. App. 538, 504 P.2d 681 (1972); Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959); Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962); Berglund v. Berglund, 28 Colo. App. 382, 474 P.2d 800 (1970); In re Peterson, 40 Colo. App. 115, 572 P.2d 849 (1977); In re DaFoe, 677 P.2d 426 (Colo. App. 1983); In re Connell, 831 P.2d 913 (Colo. App. 1992); In re LeBlanc, 944 P.2d 686 (Colo. App. 1997); In re Lishnevsky, 981 P.2d 609 (Colo. App. 1999).

This section confers significant discretion on the trial court, and permits consideration of the financial resources of both parties, so that where the husband has limited income and substantial financial obligations including payment of child support and the children's attorney fees, there is no abuse of discretion in the court's denial of the wife's motion for attorney fees. In re Parker, 41 Colo. App. 287, 584 P.2d 103 (1978); In re Rieger, 827 P.2d 625 (Colo. App. 1992).

The awarding of attorney fees is discretionary with the trial court and will not be disturbed on review if supported by the evidence. In re Icke, 35 Colo. App. 60, 530 P.2d 1001 (1974), aff'd, 189 Colo. 319, 540 P.2d 1076 (1975); In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

An award of attorney fees in subsequent litigation to enforce a separation agreement is within the trial court's discretion. Baker v. Baker, 667 P.2d 767 (Colo. App. 1983).

Notwithstanding the trial court's discretion in the allowance of fees, such discretion is a judicial one, and requires and presupposes a hearing together with a presentation of facts upon which to base the exercise of such discretion. Tower v. Tower, 147 Colo. 480, 364 P.2d 565 (1961).

Court must conduct a hearing, on the reasonableness of an award of attorney fees if a party requests a hearing. In re Aldrich, 945 P.2d 1370 (Colo. 1997).

But a court need not conduct a hearing sua sponte if a hearing is not timely requested by a party. In re Aldrich, 945 P.2d 1370 (Colo. 1997).

This section does not limit the authority of the trial court to award counsel fees only as against a defendant, but such fees may be assessed against either or both of the parties. Morrison v. Peck, 151 Colo. 83, 376 P.2d 58 (1962).

It is within the trial court's discretion to award only a portion of the attorney fees. In re Schwaab, 794 P.2d 1112 (Colo. App. 1990); In re Connell, 831 P.2d 913 (Colo. App. 1992).

Trial court did not abuse its discretion in awarding wife only a portion of her attorney fees where court found that wife had considerable assets. In re Balanson, ___ P.2d ___ (Colo. App. 1999).

On a final property settlement, if it developed that the wife had ample assets of her own to pay for the services of her attorneys, then any additional fees, including the services of counsel on a writ of error and other related matters, may have or may not have been awarded against the husband as the court determines. Kane v. Kane, 154 Colo. 440, 391 P.2d 361 (1964).

The trial court erred in not affording the plaintiff an opportunity to present evidence as to the services rendered by her attorneys, and the reasonable value of such services. Hoffman v. Hoffman, 167 Colo. 432, 447 P.2d 1005 (1968).

The trial court in a separate maintenance action had no authority to award counsel fees to the wife in a divorce action instituted by the husband and pending in another state, such fees being a matter for determination by the courts of the state where the divorce action is pending. Morgan v. Morgan, 139 Colo. 545, 340 P.2d 1060 (1959).

Order for defendant to pay portion of plaintiff's attorney fees upheld. Krall v. Krall, 31 Colo. App. 538, 504 P.2d 681 (1972).

Abuse of discretion. Where the wife not only earned more than husband, but had assets worth substantially more than husband' s, and, moreover, initiated the proceedings making attorney fees necessary, the trial court abused its discretion in awarding attorney's fees to wife. In re Corbin, 42 Colo. App. 200, 591 P.2d 1046 (1979).

Because family owned corporations were not parties to the dissolution action and because wife instituted post-decree proceedings that were groundless for lack of jurisdiction over the corporations against which relief was sought, court abused its discretion in imposing attorney fees against corporation and divorced husband. In re Noon, 735 P.2d 884 (Colo. App. 1986).

Where the trial court's property division order was an attempt to place the wife in the same financial position insofar as her separate property was concerned as she had been prior to the two-year-old marriage, but after the wife deducted her attorney fees, she was left with less than she had when she was married, the supreme court held that the portion of that order requiring the wife to pay her attorney fees constituted an abuse of discretion. Smith v. Smith, 172 Colo. 516, 474 P.2d 619 (1970).

Denial of wife's motion for expenses held abuse of discretion. McMillion v. McMillion, 31 Colo. App. 33, 497 P.2d 331 (1972).

There is no abuse of discretion where trial court does not take into account the resources of wife's new husband in concluding that she is entitled to attorney fees. In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979).

Where wife is unemployed and has no income, there is no abuse of discretion in an order for partial payment of her attorney fees. In re Erickson, 43 Colo. App. 319, 602 P.2d 909 (1979).

Where husband was temporarily unemployed at the time of the hearing and wife's assets were substantially greater than husband' s, trial court did not abuse its discretion in denying wife's request for attorney fees. In re McKendry, 735 P.2d 908 (Colo. App. 1986).

Where the agreement which provided that each party bear its own legal fees did not contemplate efforts to change the agreement after it was finally approved by the court and incorporated into the decree of divorce, the award of attorney fees by the trial court was within its discretion. Lay v. Lay, 162 Colo. 43, 425 P.2d 704 (1967).

Because the issue as to whether special separation benefits received by former husband upon his voluntary discharge from the air force constituted marital property was one of first impression, trial court did not abuse its discretion in denying wife attorney fees. In re McElroy, 905 P.2d 1016 (Colo. App. 1995).

Award of attorney fees to attorney appearing on pro bono basis is allowable under statute. In re Swink, 807 P.2d 1245 (Colo. App. 1991).

Trial court has wide discretion in awarding fees and costs and is not bound by the general provisions for recovery of costs for a prevailing party. In re Pickering, 967 P.2d 164 (Colo. App. 1997).

Trial court considering the award of attorneys' fees under this section must consider not only the reasonableness of the charge per hour but also the necessity for incurring the hours billed. In re Rieger, 827 P.2d 625 (Colo. App. 1992).

Trial court erred in denying husband's request for hearing on the reasonableness and necessity of wife's attorney fees and other costs. In re Mockelmann, 944 P.2d 670 (Colo. App. 1997).

This section allows for the award of attorney fees in subsequent proceedings even though the spouse was denied attorney fees in the original dissolution proceeding. Thus, it was an abuse of discretion for the court to deny attorney fees on a subsequent motion where the denial was based on the denial of fees in the original proceeding. In re Plesich, 881 P.2d 379 (Colo. App. 1994).

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D. Enforcement.

The allowance to a wife was enforceable by contempt. Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962).

An order for payment of counsel fees decreed by the court to a wife in a divorce action was not a debt dischargeable in bankruptcy. Allison v. Allison, 150 Colo. 377, 372 P.2d 946 (1962).

Award of attorney fees may not be enforced by an assignment under § 14-10-118. In re McCue, 645 P.2d 854 (Colo. App. 1982).

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E. Modification and Scope of Review.

Reconsideration of property division to correct error unnecessary absent contest. When neither party contests a trial court's 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).

Despite a disparity of income, when the court found that the spouse receiving maintenance had considerable assets and ordered her to pay her own attorney fees, there was no abuse of discretion. In re Weibel, 965 P.2d 126 (Colo. App. 1998).

Issues on review whether attorney fees should have been awarded must depend upon whether the record reflects that the property settlement order contemplated attorney fees and whether as a whole it was fair and equitable. Rayer v. Rayer, 32 Colo. App. 400, 512 P.2d 637 (1973).

Lack of written findings of facts leaves no basis for review. Where a trial court makes no written findings of fact in support of its denial of an award of attorney fees, a reviewing court has no basis on which to review the ruling. In re Pilcher, 628 P.2d 126 (Colo. App. 1980).

Where the motion of an attorney, who had withdrawn as counsel for the wife in a divorce action, for allowance of fees was denied, and record disclosed no evidence or offer of proof to show value of services rendered prior to withdrawal, the action was remanded for findings on the value of his services rendered, if any, for which he had not been compensated, and for judgment pursuant thereto. Morrison v. Peck, 151 Colo. 83, 376 P.2d 58 (1962).

A finding by the trial court that under the circumstances shown each party should pay his or her own costs and attorney fees, supported by the record, will not be disturbed. Jensen v. Jensen, 142 Colo. 420, 351 P.2d 387 (1960).

Where an order requiring a husband to pay attorney fees for his wife was a means of paying off her indebtedness rather than of enabling her to prosecute, it could properly be considered by the court as part of the division of property settlement and the question on review would have been whether the property settlement as a whole was fair and equitable, not whether the wife had the financial ability to pay her own fees. Krall v. Krall, 31 Colo. App. 538, 504 P.2d 681 (1972).

The supreme court has, in the exercise of its appellate jurisdiction, power to act on applications for attorney fees, costs, alimony, etc., in matters pending on error; however, under ordinary circumstances all of these matters should be presented to the trial court for the reason that the trial court has already had the case before it and is better equipped to determine questions of fact and to make a full and complete investigation and adjudication. Watson v. Watson, 135 Colo. 296, 310 P.2d 554 (1957).

An order granting attorney fees was reviewable even though there had been no final judgment in the case. Stockham v. Stockham, 145 Colo. 376, 358 P.2d 1026 (1961); Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Bagot v. Bagot, 68 Colo. 562, 191 P. 96 (1920); Benham v. Willmer, 71 Colo. 451, 207 P. 592 (1922); Hobbs v. Hobbs, 72 Colo. 190, 210 P. 398 (1922).

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III. ANTENUPTIAL AGREEMENTS.

Section controls awarding of attorney fees where antenuptial agreement was silent on the matter. In re Newman, 44 Colo. App. 307, 616 P.2d 982 (1980), aff'd in part, rev' d on other grounds, 653 P.2d 728 (Colo. 1982).

No unconstitutional impairment of antenuptial contract by award. Where the matter of attorney fees was left open by an antenuptial contract, there was therefore no unconstitutional impairment of that contract by the award of such. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).


 

14-10-120 - Decree.

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(1) A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from the decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.

(2) No earlier than six months after entry of a decree of legal separation, on motion of either party and proof that a notice has been mailed to the other party at his or her last-known address, the court shall convert the decree of legal separation to a decree of dissolution of marriage, and a copy thereof shall be mailed to both parties.

(3) The clerk of the court shall give notice of the entry of a decree of dissolution to the office of state registrar of vital statistics in the division of administration of the department of public health and environment, which office shall make this information available to the public upon request.

(4) No decree that may enter shall relieve a spouse from any obligation imposed by law as a result of the marriage for the support or maintenance of a spouse determined to be mentally incompetent by a court of competent jurisdiction prior to the decree, unless such spouse has sufficient property or means of support.

(5) Whenever child support has been ordered, the decree of dissolution, legal separation, declaration of invalidity, allocating parental responsibilities, or support shall contain an order for an income assignment pursuant to section 14-14-111.5.

(6) Notwithstanding the entry of a final decree of dissolution of marriage or of legal separation pursuant to this section, the district court may maintain jurisdiction to enter such temporary or permanent civil restraining orders as may be provided by law upon request of any of the parties to the action for dissolution of marriage or legal separation, including, but not limited to, any restraining order requested pursuant to section 14-10-108.

 

Source: L. 71: R&RE, p. 528, § 1. C.R.S. 1963: § 46-1-20. L. 75: (3) R&RE, p. 585, § 1, effective May 31; (4) amended, p. 925, § 21, effective July 1. L. 77: (2) amended, p. 825, § 1, effective May 26. L. 85: (5) added, p. 592, § 11, effective July 1. L. 94: (5) amended, p. 1539, § 6, effective May 31; (3) amended, p. 2731, § 348, effective July 1. L. 96: (5) amended, p. 622, § 31, effective July 1. L. 98: (5) amended, p. 1399, § 44, effective February 1, 1999. L. 99: (6) added, p. 500, § 2, effective July 1.

Cross references: For the legislative declaration contained in the 1994 act amending subsection (3), see section 1 of chapter 345, Session Laws of Colorado 1994.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 387-399.

C.J.S. See 27B C.J.S., Divorce, § § 222-238.

Law reviews. For article, "Income Tax on Alimony", see 30 Dicta 263 (1953).

Annotator's note. Since § 14-10-120 is similar to repealed § 46-1-7, C.R.S. 1963, § 46-1-9, CRS 53, CSA, C. 56, § 13 through 17, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The general assembly intended to eliminate the six-month delay for a decree of dissolution to become effective and intended to terminate the marital status of the parties immediately upon entry of the decree of dissolution. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).

This section permits a party to appeal the termination of the marital status only when the party challenges the district court's finding that the marriage is irretrievably broken or by raising a jurisdictional defect in the proceedings. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).

An unappealed decree of dissolution is final when entered to determine the status of the parties and that abatement does not occur should one party die after the decree is entered. Estate of Burford v. Burford, 935 P.2d 943 (Colo. 1997).

There was but one final decree in a divorce suit, although it may consist of different provisions, one for a dissolution of the marriage relation, another for security for the payment of alimony, and various other provisions embodied in the one instrument. Diegel v. Diegel, 73 Colo. 330, 215 P. 143 (1923).

No other decree was required to be entered than the interlocutory one which in a normal situation mechanically became final. Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936); Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

A court need not have entered a final decree reiterating or summarizing or tying together its previous orders including an interlocutory decree in Colorado. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

It may have been said that the interlocutory decree was a final order by express provision of the former statute, but, it was pertinent to observe that while the statute said that the interlocutory decree was a final order and therefore subject to review on writ of error, that it did not say that such order was a final decree of divorce. Doty v. Doty, 103 Colo. 543, 88 P.2d 573 (1939).

An unverified, unsupported motion to set aside an interlocutory decree of divorce was not a "motion or petition" within the meaning of the former section concerning the setting aside of interlocutory decrees. Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936).

The prevailing party in a divorce action could not be compelled to permit a decree to become final against his express desire and over his objection. Faith v. Faith, 128 Colo. 483, 261 P.2d 255 (1953); McClanahan v. County Court, 136 Colo. 426, 318 P.2d 599 (1957).

Where the prevailing party in a divorce action moved to dismiss the same prior to the entry of a final decree, a trial court lacked jurisdiction to act in the case other than to dismiss the same. McClanahan v. County Court, 136 Colo. 426, 318 P.2d 599 (1957).

Decree of dissolution entered after a spouse's death is void for lack of jurisdiction, and the dissolution action is abated. In Re Connell, 870 P.2d 632 (Colo. App. 1994).

A reversal of the judgment of the trial court was had because of its refusal to grant plaintiff's motion to dismiss her divorce case after the entry of the interlocutory decree. Faith v. Faith, 128 Colo. 483, 261 P.2d 225 (1953).

Where it appears from a record and from the conduct of counsel that the parties agreed that a court would defer determination of permanent alimony, property settlement, and related matters until after the entry of a final decree of divorce, orders entered pursuant thereto were not void because not included in such decree, or the questions reserved therein. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

Where orders for permanent alimony and related matters were not included in the interlocutory decree, because a court had taken the matter under advisement, orders resulting therefrom were valid and remained in full force and effect, constituting a modification of the interlocutory decree and were merged in a final decree which recited upon the terms and conditions contained in the interlocutory decree or any modification of change thereof. Rodgers v. Rodgers, 137 Colo. 74, 323 P.2d 892 (1958).

Provision in agreement incorporated into dissolution decree which required a father to pay a daughter's medical bills until the daughter was "gainfully employed" was not ambiguous and required that the employment of the daughter be self-supporting, rather than remunerative, in order to terminate the father's obligations. In re Norton, 757 P.2d 1127 (Colo. App. 1988).

The former section relating to the entry of an interlocutory decree in a divorce action within 48 hours after close of a trial, or the return of a verdict, was directory and not mandatory or jurisdictional. Kemper v. Kemper, 140 Colo. 367, 344 P.2d 449 (1959).

Formerly, the necessity for the lapse of six months and the entry of a final decree was just as essential to the power of a court to order a division of property, as to authorize it to enter a final decree. McCoy v. McCoy, 139 Colo. 105, 336 P.2d 302 (1959).

A writ of error in a divorce case was not dismissible on the ground that it was not filed within six months after the issuance of the interlocutory decree. Simmons v. Simmons, 107 Colo. 78, 108 P.2d 871 (1940).

However, notice of a motion to vacate an interlocutory decree of divorce, served upon the administrator of the estate of successful party after the latter's death and after the expiration of the six-month period designated by statute, was futile and without effect. Morris v. Propst, 98 Colo. 213, 55 P.2d 944 (1936).

Where the wife's lien was created by the judgment of the court in a divorce action based upon the stipulation of the parties, the judgment became final and where a subsequent order of abatement terminated the proceedings relative to the motion which the husband had filed to reduce the payments to the wife, it had no effect upon the final judgment which created the lien. Willis v. Neilson, 32 Colo. App. 129, 507 P.2d 1106 (1973).

C.R.C.P. 59(e) specifies that a party may move to alter or amend a judgment by a motion filed not later than 10 days after entry of judgment; therefore, where appellate filed such a motion within the allotted time, and the trial court subsequently did amend its judgment pursuant to such motion and the supplemental motion, the original court's judgment never became final, and it was not enforceable by either divorced party with respect to his or her property rights, because it did not create an enforceable right either in the husband or in his estate to take a divided share of the joint tenancy property. Sarno v. Sarno, 28 Colo. App. 598, 478 P.2d 711 (1970).

Order under C.R.C.P. 54(b) authorized. Section 14-10-105, providing that the Colorado rules of civil procedure apply to dissolution proceedings except as "otherwise specifically provided" in the act, and this section, providing that a decree of dissolution of marriage is "final" when entered, subject to the right of appeal, authorize the trial court to enter an order pursuant to C.R.C.P. 54(b) making the decree final for purposes of appeal. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Appealability of decree on entry of such order. Upon the entry of an order under C.R.C.P. 54(b) a decree of dissolution of marriage may be appealed prior to entry of permanent orders on the issues of child custody, support, and division of property. In re Baier, 39 Colo. App. 34, 561 P.2d 20 (1977).

Stay of decree pending appeal. When an appeal is taken from the finding that the marriage is "irretrievably broken", the finality of the decree dissolving the marriage may be stayed upon an appropriate motion duly made. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975).

Where a decree in a divorce action ordering title to real property to remain in joint tenancy, and granting the right to possession and income therefrom to the wife, had become final and the time for appeal had expired, the decree could not be reversed by the supreme court. McDonald v. McDonald, 150 Colo. 492, 374 P.2d 690 (1962).

Dissolution decree severing joint tenancy upheld, even though documents conveying house into tenancy in common were not executed. Cannon v. Waddell, 642 P.2d 520 (Colo. App. 1981).

Where the record on error in a divorce action contained no reporter's transcript, the supreme court had no means of reviewing the evidence; hence, the findings and judgment of a trial court were presumed to be supported by the evidence. Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370 (1958).

Erroneous divorce decree valid and binding. Although divorce decree was an erroneous judgment, until modified by the court which entered it, or set aside on motion for new trial, or until reversed by an appellate court on direct review proceedings, it was valid and binding. McLeod v. Provident Mut. Life Ins. Co., 186 Colo. 234, 526 P.2d 1318 (1974).

For appeals procedure in divorce cases under early laws, see Daniels v. Daniels, 9 Colo. 133, 10 P. 657 (1886); Mercer v. Mercer, 13 Colo. App. 237, 57 P. 750 (1899); Mercer v. Mercer, 27 Colo. 216, 60 P. 349 (1900); Eickhoff v. Eickhoff, 27 Colo. 380, 61 P. 225 (1900); Eickhoff v. Eickhoff, 29 Colo. 295, 68 P. 237 (1902); Carlton v. Carlton, 44 Colo. 27, 96 P. 995 (1908); Dickinson v. Dickinson, 46 Colo. 351, 104 P. 414 (1909); Rudolph v. Rudolph, 50 Colo. 243, 114 P. 977 (1911); Prewitt v. Prewitt, 52 Colo. 522, 122 P. 766 (1912); Harrington v. Harrington, 58 Colo. 154, 144 P. 20 (1914); Gill v. Gill, 59 Colo. 40, 148 P. 264 (1915); Boyd v. Boyd, 63 Colo. 157, 164 P. 703 (1917); Chamberlain v. Chamberlain, 66 Colo. 562, 185 P. 354 (1919); Kurtz v. Kurtz, 70 Colo. 20, 196 P. 530 (1921); Hobbs v. Hobbs, 72, Colo. 190, 210 P. 398 (1922); Diegel v. Diegel, 73 Colo. 330, 215 P. 143 (1923); Perry v. Perry, 74 Colo. 106, 219 P. 221 (1923); Miller v. Miller, 74 Colo. 143, 219 P. 783 (1923); Unzicker v. Unzicker, 74 Colo. 211, 220 P. 495 (1923); Fowler v. Fowler, 74 Colo. 231, 220 P. 988 (1923); Diebold v. Diebold, 76 Colo. 255, 230 P. 605 (1924); Hultquist v. Hultquist, 77 Colo. 260, 236 P. 777 (1925); Lednum v. Lednum, 78 Colo. 57, 239 P. 877 (1925); Weston v. Weston, 79 Colo. 478, 246 P. 790 (1926); Ikeler v. Ikeler, 82 Colo. 278, 260 P. 104 (1927); Taylor v. Taylor, 85 Colo. 65, 273 P. 878 (1928); Blackmer v. Blackmer, 87 Colo. 173, 286 P. 114 (1930); Laizure v. Baker, 91 Colo. 48, 11 P.2d 560 (1932); Hayhurst v. Hayhurst, 91 Colo. 58, 11 P.2d 804 (1932); Pierce v. Pierce, 97 Colo. 39, 46 P.2d 748 (1935).


 

14-10-120.3 - Dissolution of marriage upon affidavit - requirements.

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(1) Final orders in a proceeding for dissolution of marriage may be entered upon the affidavit of either or both parties when:

(a) There are no minor children of the husband and wife and the wife is not pregnant or the husband and wife are both represented by counsel and have entered into a separation agreement that provides for the allocation of parental responsibilities concerning the children of the marriage and setting out the amount of child support to be provided by the husband or wife or both; and

(b) The adverse party is served in the manner provided by the Colorado rules of civil procedure; and

(c) There is no genuine issue as to any material fact; and

(d) There is no marital property to be divided or the parties have entered into an agreement for the division of their marital property.

(2) If one party desires to submit the matter for entry of final orders upon an affidavit, the submitting party shall file his affidavit setting forth sworn testimony showing the court's jurisdiction and factual averments supporting the relief requested in the proceeding together with a copy of the proposed decree, a copy of any separation agreement proposed for adoption by the court, and any other supporting evidence. The filing of such affidavit shall not be deemed to shorten any statutory waiting period required for entry of a decree of dissolution.

(3) The court shall not be bound to enter a decree upon the affidavits of either or both parties, but the court may, upon its own motion, require that a formal hearing be held to determine any or all issues presented by the pleadings.

 

Source: L. 82: Entire section added, p. 303, § 1, effective May 22. L. 98: (1)(a) amended, p. 1399, § 45, effective February 1, 1999.

Law reviews. For article, "Legislative Activities in Family Law", see 11 Colo. Law. 1560 (1982). For article, "Mediation and the Colorado Lawyer", see 11 Colo. Law. 2315 (1982).


 

14-10-120.5 - Petition for dissolution of marriage - fee - assessment - displaced homemakers fund.

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(1) There shall be assessed against a nonindigent petitioner a fee of five dollars for each filing of a petition for dissolution of marriage. All such fees collected shall be transmitted to the state treasurer for deposit in the displaced homemakers fund created pursuant to section 8-15.5-108, C.R.S.

(2) Notwithstanding the amount specified for the fee in subsection (1) of this section, the chief justice of the supreme court by rule or as otherwise provided by law may reduce the amount of the fee if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of the fee is credited. After the uncommitted reserves of the fund are sufficiently reduced, the chief justice by rule or as otherwise provided by law may increase the amount of the fee as provided in section 24-75-402 (4), C.R.S.

 

Source: L. 80: Entire section added, p. 455, § 2, effective July 1. L. 98: Entire section amended, p. 1330, § 40, effective June 1.

Cross references: For the docket fees for dissolution of marriage actions, see § 13-32-101.


 

14-10-121 - Independence of provisions of decree or temporary order.

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If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit parenting time is not suspended; but said party may move the court to grant an appropriate order.

 

Source: L. 71: R&RE, p. 529, § 1. C.R.S. 1963: § 46-1-21. L. 93: Entire section amended, p. 577, § 9, effective July 1.

Cross references: For the legislative declaration contained in the 1993 act amending this section, see section 1 of chapter 165, Session Laws of Colorado 1993.

Intent of general assembly is to make matters relating to child support and child custody independent of each other. County of Clearwater v. Petrash, 198 Colo. 231, 598 P.2d 138 (1979).

Applied in Wise v. Bravo, 666 F.2d 1328 (10th Cir. 1981).


 

14-10-122 - Modification and termination of provisions for maintenance, support, and property disposition - automatic lien.

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(1) (a) Except as otherwise provided in section 14-10-112 (6), 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 guideline set forth in section 14-10-115 (3) to (16) 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 shall not be retroactively modified except pursuant to paragraph (a) of this subsection (1) 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 shall not be required to wait fifteen days to execute on such support judgment. 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 shall revive 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 paragraph (c), no court order for support judgment nor verified entry of support judgment shall be 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 obligor's 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 obligor's 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 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 life of the judgment or until all past-due amounts are paid, including any accrued interest and costs, without the necessity of renewal. 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 and moneys held by a financial institution as defined by 42 U.S.C. sec. 669 (d) or motor vehicles.

(I) To evidence a lien on personal property, other than wages and moneys held by a financial institution as defined in 42 U.S.C. sec. 669 (d) 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, such lien shall be an encumbrance in favor of the obligee, or the assignee of the obligee, and shall encumber 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 twelve years or until all past-due amounts are paid, including any accrued interest and costs, without the necessity of renewal. 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 pursuantto 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), C.R.S., by first class mail. From the time of filing of the lien for public record and the notation of such lien on the owner's certificate of title, 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 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 owner's certificate of title in the manner provided in sections 42-6-121 and 42-6-129, C.R.S.

(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 owner's certificate of title. "Motor vehicle" does not include motorized bicycles, as defined in section 42-1-102 (59) (b), 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 mobile machinery, self-propelled construction equipment, 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 owner's certificate of title.

(e) Priority of a lien.

(I) A lien on real property created pursuant to this section shall be in effect for 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) shall expire at the conclusion of twelve years and may not be extended or renewed beyond that period of time.

(II) A lien on personal property, other than motor vehicles, created pursuant to this section shall be in effect for 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) shall expire at the conclusion of twelve years and may not be extended or renewed beyond that period of time.

(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 owner's 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), C.R.S., 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) Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

(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 (1.5), but only as to installments accruing subsequent to the filing of the motion for modification; except that section 14-10-115 (1.5) (a) 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 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 as of the date when physical care was changed. When a mutually agreed upon change of physical care occurs, parties are encouraged to avail themselves of the provision for updating and modifying a child support order without a court hearing, that is set forth in section 14-10-115 (3) (b) (II).

 

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.

Editor's note: (1) Amendments to subsection (5) by Senate Bill 98-139 and House Bill 98-1183 were harmonized in the version of that subsection that is 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 section 14-10-124.

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.

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Analysis

I. General Consideration.
II. Modification.
A. Procedure.
B. Unconscionability.
C. Changed Circumstances.
D. Discretion of Court.
E. Jurisdiction of the Courts.
F. Effective Date of Modification.
G. Scope of Review.
III. Termination of Maintenance and Child Support.
I. GENERAL CONSIDERATION.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 786-792, 794, 809-823, 825-846, 848, 850-852.

C.J.S. See 27B C.J.S., Divorce, § § 401-415, 481-487.

Law reviews. For note, "Interstate Modification of Support Decrees", see 28 Rocky Mt. L. Rev. 355 (1956). 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).

Annotator's 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 father's 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 father's 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 husband's 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 doctor's 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), aff'd, 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 party's detriment, upon the acts or representations of the other person and lack of knowledge or convenient means of knowing the facts. In re Dennin and 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 father's 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).

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 court's 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 court's 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)).

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).

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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 court's order. Original trial court's 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).

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 non-modifiable 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 court's 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).

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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), aff'd, 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), aff'd, 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), aff'd, 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 children's education should not be a reason to punish that parent's 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.

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).

Wife's 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 court's 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). In re Bowman-Berry, 749 P.2d 465 (Colo. App. 1987).

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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. Brownfield v. Brownfield, 143 Colo. 262, 352 P.2d 674 (1960); 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); 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 ten percent 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).

Trial court properly denied father's 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 child's 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 husband's 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 father's 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 father's 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).

Child's needs more compelling than father' s. Despite the fact that the father had left the military and enrolled in college, the trial court erred when it denied the mother's motion for an increase in child support where there was a reasonable inference from the evidence that the father's 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 mother's 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 mother's employment or income does not relieve the father of the obligation to support his children under a support order, and the mother's employment or property would not inure to the father's 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 petitioner's 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 parent's death must be considered by the court on a motion to terminate or modify its order for child support. In re Estate of 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 parent's income was temporarily reduced has no relevance to the situation, where that parent's 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), rev' d on other grounds, 514 P.2d 73 (1973).

Application of new child support guidelines resulting in more than a ten 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).

Presumption regarding ten percent change set forth in subsection (1)(b) of this section 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 parent's personal medical expenses. In re Ford, 851 P.2d 295 (Colo. App. 1993).

If the party requesting modification demonstrates that an increase in the obligor's income would result in at least a ten percent change in the amount of child support, the child's 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 ten 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 court's order in effect creates such a presumption only as to the husband's 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).

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).

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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. Beddoes v. Beddoes, 155 Colo. 115, 393 P.2d 1 (1964); Harris v. Harris, 113 Colo. 41, 154 P.2d 617 (1944).

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 court's 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 court's 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 court's abuse of discretion. In cases where an appeal has been taken from the property division, maintenance and attorney's 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 husband's 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 husband's 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 mother's 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 court's 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 mother's 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).

The provisions of any decree respecting child support may be modified only as to installments accruing after the filing for modification. Thus, the trial court's ability to modify retroactively an accrued child support obligation is severely restricted. In re Wright, 924 P.2d 1207 (Colo. App. 1996).

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E. Jurisdiction of the Courts.

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 court's 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. Huff v. Huff, 77 Colo. 15, 234 P. 167 (1925); Stevens v. Stevens, 31 Colo. 188, 72 P. 1061 (1903).

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).

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 court's 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), aff'd in part and rev' d 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 court's 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).

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 court's modification of property division, to pay home sale proceeds and attorney fees in installments, limited wife's 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 twenty-one did not divest the court of jurisdiction to order continuing child support. In re Salas, 868 P.2d 1180 (Colo. App. 1994).

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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. Drazich v. Drazich, 153 Colo. 218, 385 P.2d 259 (1963); Lopez v. Lopez, 148 Colo. 404, 366 P.2d 373 (1961).

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 court's determination will stand absent an abuse of discretion. In re DaFoe, 677 P.2d 426 (Colo. App. 1983).

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)).

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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. Cohan v. Cohan, 150 Colo. 249, 372 P.2d 149 (1962); Rodgers v. Rodgers, 102 Colo. 94, 76 P.2d 1104 (1938).

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 husband's 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).

Referee's 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).

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III. TERMINATION OF MAINTENANCE AND CHILD SUPPORT.

Annotator's 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.

Section inapplicable where agreement provides that only wife's death would absolve husband's 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 wife's 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 recipient's 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 and 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 parent's 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) of this section 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 husband's 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 husband's obligations at his father's 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 husband's obligation to pay alimony ceased at the wife's 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 and 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 and 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), aff'd, 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 child's twenty-first 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 parent's 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 child's earnings from summer employment do not affect the noncustodial parent's 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 child's disability. Koltay v. Koltay, 667 P.2d 1374 (Colo. 1983).

Emancipation automatic upon child's 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 parent's existing obligation of support and plain language of subsection (4) of this section 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).

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).

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 children's 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).


 

14-10-123 - Commencement of proceedings concerning allocation of parental responsibilities - jurisdiction.

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(1) A proceeding concerning the allocation of parental responsibilities is commenced in the district court or as otherwise provided by law:

(a) By a parent:

(I) By filing a petition for dissolution or legal separation; or

(II) By filing a petition seeking the allocation of parental responsibilities with respect to a child in the county where the child is permanently resident or where the child is found; or

(b) By a person other than a parent, by filing a petition seeking the allocation of parental responsibilities for the child in the county where the child is permanently resident or where the child is found, but only if the child is not in the physical care of one of the child's parents;

(c) By a person other than a parent who has had the physical care of a child for a period of six months or more, if such action is commenced within six months of the termination of such physical care; or

(d) By a parent or person other than a parent who has been granted custody of a child or who has been allocated parental responsibilities through a juvenile court order entered pursuant to section 19-1-104 (6), C.R.S., by filing a certified copy of the juvenile court order in the county where the child is permanently resident. Such order shall be treated in the district court as any other decree issued in a proceeding concerning the allocation of parental responsibilities.

(2) Except for a proceeding concerning the allocation of parental responsibilities commenced pursuant to paragraph (d) of subsection (1) of this section, notice of a proceeding concerning the allocation of parental responsibilities shall be given to the child's parent, guardian, and custodian or person allocated parental responsibilities, who may appear and be heard and may file a responsive pleading. The court may, upon a showing of good cause, permit the intervention of other interested parties.

 

Source: L. 71: R&RE, p. 529, § 1. C.R.S. 1963: § 46-1-23. L. 73: p. 554, § 10. L. 97: Entire section amended, p. 515, § 1, effective July 1. L. 98: Entire section amended, p. 1377, § 3, effective February 1, 1999.

Cross references: For procedure for intervention of other parties generally, see Rule 24, C.R.C.P.; for procedure in a custody proceeding, see § 14-13-110.

Am. Jur.2d. See 24 Am. Jur.2d, Divorce and Separation, § § 944, 947, 951-953, 960.

C.J.S . See 27C C.J.S., Divorce, § § 611-617.

Law reviews. For note, "The Puzzle of Jurisdiction in Child Custody Actions", see U. Colo. L. Rev. 541 (1966). For article, "Mediation of Contested Child Custody Disputes", see 11 Colo. Law. 336 (1982). For article, "The Role of the Guardian ad Litem in Custody and Visitation Disputes", see 17 Colo. Law. 1301 (1988). For article, "Custody Evaluations in Colorado", see 18 Colo. Law. 1523 (1989).

No jurisdiction. Colorado court lacks jurisdiction to hear a petition for custody filed by a parent when a child is not a permanent resident nor located in the state when the petition is filed. In re Barnes, 907 P.2d 679 (Colo. App. 1995).

This section permits the intervention of interested parties; it does not mandate that they be made parties. In re Trouth, 631 P.2d 1183 (Colo. App. 1981).

Court retains jurisdiction over child custody issues until the child reaches the age of emancipation. In re Hartley, 886 P.2d 665 (Colo. 1994).

Petition need not be incidental to dissolution of marriage. Petitions for legal custody do not have to be incidental to a dissolution of marriage proceeding for the district court to have jurisdiction. In re Davis, 656 P.2d 42 (Colo. App. 1982).

Colorado district court had no jurisdiction under this section when it issued order granting full faith and credit to Wyoming court order. Gutierrez v. District Court, 183 Colo. 264, 516 P.2d 647 (1973).

Once a petition under this section is certified to be determined as part of a pending dependency and neglect action under the Children's Code, dissolution-of-marriage statutes cease to apply. Instead, provisions of the Children's Code govern, in view of the differing policies behind the respective statutes. People in Interest of D.C., 851 P.2d 291 (Colo. App. 1993).

Non-parents who had physical custody of child beginning immediately after his birth had standing to seek custody under this section where, in adopting subsection (1)(b), the general assembly intended that a literal meaning be applied to the term "physical custody" and did not intend to equate "physical custody" with either "legal custody" or the "parental right to continued physical or legal custody". Thus, in keeping with the overriding policy of promoting the best interests of children, Colorado has adhered to a liberalized view as to the standing of non-parents to commence and participate in custody proceedings. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Proof that the non-parent had become the psychological parent of the child is not a condition precedent to standing under either subsection (1)(b) or (1)(c). In re Custody of A.D.C., 969 P.2d 708 (Colo. App. 1998).

The fact that reported cases under this section involved step-parents or blood relatives of the child or his parents does not mean that only those persons should be accorded standing as "person(s) other than a parent" where no language in the statute or in any Colorado appellate decision indicates that such relationship is a legal requirement for non-parent standing to commence custody proceedings. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Proceedings under the Uniform Dissolution of Marriage Act are not preempted by the Colorado Children's Code where mother placed child with non-parents in contemplation of relinquishment and adoption proceedings under the Children's Code, but such proceedings later became impossible when the mother withdrew her consent and did not honor her agreement to obtain counseling as required by the Children's Code. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Due process does not require a showing of parental unfitness or the use of an enhanced standard of proof in a case that does not involve the termination or relinquishment of parental rights nor their abrogation by adoption. In re Custody of C.C.R.S., 872 P.2d 1337 (Colo. App. 1993), aff'd, 892 P.2d 246 (Colo. 1995).

Due process does not require clear and convincing evidence to support the award of custody to a non-parent with standing to seek custody of a child, but, rather, a showing by a preponderance of the evidence that it is in the best interests of the child. In re Custody of A.D.C., 969 P.2d 708 (Colo. App. 1998).

Child is not an "other" party who may intervene through independent counsel pursuant to this section. Since a child is represented by a guardian ad litem in custody, visitation, and parenting time proceedings, a child is already fully represented and is not a party able to intervene in such proceedings. In re Hartley, 886 P.2d 665 (Colo. 1994).

Applied in In re Pilcher, 628 P.2d 126 (Colo. App. 1980); In re Johnson, 634 P.2d 1034 (Colo. App. 1981); Deeb v. Morris, 14 Bankr. 217 (Bankr. D. Colo. 1981); In re Matter of V.R.P.F., 939 P.2d 512 (Colo. App. 1997).


 

14-10-123.3 - Requests for parental responsibility for a child by grandparents.

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Whenever a grandparent seeks parental responsibility for his or her grandchild pursuant to the provisions of this article, the court entering such order shall consider any credible evidence of the grandparent's past conduct of child abuse or neglect. Such evidence may include, but shall not be limited to, medical records, school records, police reports, records of the state central registry of child protection, and court records.

 

Source: L. 91: Entire section added, p. 261, § 1, effective May 31. L. 98: Entire section amended, p. 1378, § 4, effective February 1, 1999.


 

14-10-123.4 - Rights of children in matters relating to parental responsibilities.

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The general assembly hereby declares that children have certain rights in the determination of matters relating to parental responsibilities, including the right to have such determinations based upon the best interests of the child.

 

Source: L. 87: Entire section added, p. 574, § 1, effective July 1. L. 98: Entire section amended, p. 1378, § 5, effective February 1, 1999.

This section, coupled with the permissive language found throughout § § 14-10-123.5 and 14-10-124, indicates that the best interests of the child, and not the rights or wishes of either parent, must dictate the outcome of any custody dispute. In re Lester, 791 P.2d 1244 (Colo. App. 1990).

An award of custody to a non-parent with standing may be made upon a showing by a preponderance of the evidence that it is in the best interests of the child. In re Custody of A.D.C., 969 P.2d 708 (Colo. App. 1998).

No right to participate through chosen counsel. This section does not include a right for a child to participate in custody matters through counsel chosen by the child. In re Hartley, 886 P.2d 665 (Colo. 1994).

To protect rights of the child, the court may interview the child or appoint a guardian ad litem to represent the child's interests. In re D.R.V-A, 976 P.2d 881 (Colo. App. 1999).


 

14-10-123.5 Joint custody (Repealed 1999)

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14-10-123.6 - Required notice of prior restraining orders to prevent domestic abuse - proceedings concerning parental responsibilities relating to a child.

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1) The general assembly hereby finds, determines, and declares that domestic violence is a pervasive problem in society and that a significant portion of domestic violence in society occurs in or near the home. The general assembly further recognizes research demonstrating that children in a home where domestic violence occurs are at greater risk of emotional, psychological, and physical harm. Studies have found that eighty to ninety percent of the children living in homes with domestic violence are aware of the violence. The general assembly finds that emerging research has established that these children are at greater risk of the following: Psychological, social, and behavioral problems; higher rates of academic problems; more physical illnesses, particularly stress-associated disorders; and a greater propensity to exhibit aggressive and violent behavior, sometimes carrying violent and violence-tolerant roles to their adult relationships. Studies have also noted that children are affected to varying degrees by witnessing violence in the home, and each child should be assessed on an independent basis. Accordingly, the general assembly determines that it is in the best interests of the children of the state of Colorado for the courts to advise the parents or guardians of children affected by domestic violence about the availability of resources and services and for such persons to be provided with information concerning the resources and services available to aid in the positive development of their children. It is the intent of the general assembly that such information would increase the awareness of the possible effects of domestic violence on children in the home, while providing the parents and legal guardians of these children with a comprehensive resource of available children's services as well as potential financial resources to assist parents and legal guardians seeking to retain services for their children affected by domestic violence.

(2) When filing a proceeding concerning the allocation of parental responsibilities relating to a child pursuant to this article, the filing party shall have a duty to disclose to the court the existence of any prior temporary or permanent restraining orders to prevent domestic abuse issued pursuant to article 14 of title 13, C.R.S., and any emergency protection orders issued pursuant to section 13-14-103, C.R.S., entered against either party by any court within two years prior to the filing of the proceeding. The disclosure required pursuant to this section shall address the subject matter of the previous restraining orders or emergency protection orders, including the case number and jurisdiction issuing such orders.

(3) After the filing of the petition, the court shall advise the parties concerning domestic violence services and potential financial resources that may be available and shall strongly encourage the parties to obtain such services for their children, in appropriate cases. If the parties' children participate in such services, the court shall apportion the costs of such services between the parties as it deems appropriate.

(4) The parties to a domestic relations petition filed pursuant to this article shall receive information concerning domestic violence services and potential financial resources that may be available.

 

Source: L. 95: Entire section added, p. 83, § 1, effective July 1. L. 98: Entire section amended, p. 1379, § 7, effective February 1, 1999. L. 99: Entire section amended, p. 502, § 10, effective July 1. L. 2001: Entire section amended, p. 979, § 2, effective August 8. L. 2004: (2) amended, p. 555, § 11, effective July 1.

 


 

14-10-123.7 - Parental education - legislative declaration.

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(1) The general assembly recognizes research that documents the negative impact divorce and separation can have on children when the parents continue the marital conflict, expose the children to this conflict, or place the children in the middle of the conflict or when one parent drops out of the child's life. This research establishes that children of divorce or separation may exhibit a decreased ability to function academically, socially, and psychologically because of the stress of the divorce or separation process. The general assembly also finds that, by understanding the process of divorce and its impact on both adults and children, parents can more effectively help and support their children during this time of family reconfiguration. Accordingly, the general assembly finds that it is in the best interests of children to authorize courts to establish, or contract with providers for the establishment of, educational programs for separating, divorcing, and divorced parents with minor children. The intent of these programs is to educate parents about the divorce process and its impact on adults and children and to teach coparenting skills and strategies so that parents may continue to parent their children in a cooperative manner.

(2) A court may order a parent whose child is under eighteen years of age to attend a program designed to provide education concerning the impact of separation and divorce on children in cases in which the parent of a minor is a named party in a dissolution of marriage proceeding, a legal separation proceeding, a proceeding concerning the allocation of parental responsibilities, parenting time proceedings, or post decree proceedings involving the allocation of parental responsibilities or parenting time or proceedings in which the parent is the subject of a restraining order issued pursuant to this article.

(3) Each judicial district, or combination of judicial districts as designated by the chief justice of the Colorado supreme court, may establish an educational program for divorcing and separating parents who are parties to any of the types of proceedings specified in subsection (2) of this section or arrange for the provision of such educational programs by private providers through competitively negotiated contracts. The educational program shall inform parents about the divorce process and its impact on adults and children and shall teach parents coparenting skills and strategies so that they may continue to parent their children in a cooperative manner. Any such educational program shall be administered and monitored by the implementing judicial district or districts and shall be paid for by the participating parents in accordance with each parent's ability to pay.

 

Source: L. 96: Entire section added, p. 249, § 1, effective July 1. L. 97: (2) amended, p. 80, § 1, effective March 24. L. 98: (2) amended, p. 1380, § 8, effective February 1, 1999.


 

14-10-123.8 - Access to records.

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Access to information pertaining to a minor child, including but not limited to medical, dental, and school records, shall not be denied to any party allocated parental responsibilities, unless otherwise ordered by the court for good cause shown.

 

Source: L. 98: Entire section added, p. 1380, § 9, effective February 1, 1999.


 

14-10-124 - Best interests of child.

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(1) Legislative declaration. The general assembly finds and declares that it is in the best interest of all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.

(1.5) Allocation of parental responsibilities. The court shall determine the allocation of parental responsibilities, including parenting time and decision-making responsibilities, in accordance with the best interests of the child giving paramount consideration to the physical, mental, and emotional conditions and needs of the child as follows:

(a) Determination of parenting time. The court, upon the motion of either party or upon its own motion, may make provisions for parenting time that the court finds are in the child's best interests unless the court finds, after a hearing, that parenting time by the party would endanger the child's physical health or significantly impair the child's emotional development. In determining the best interests of the child for purposes of parenting time, the court shall consider all relevant factors, including:

(I) The wishes of the child's parents as to parenting time;

(II) The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;

(III) The interaction and interrelationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child's best interests;

(IV) The child's adjustment to his or her home, school, and community;

(V) The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time;

(VI) The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party;

(VII) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support;

(VIII) The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;

(IX) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence;

(X) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence;

(XI) The ability of each party to place the needs of the child ahead of his or her own needs.

(b) Allocation of decision-making responsibility. The court, upon the motion of either party or its own motion, shall allocate the decision-making responsibilities between the parties based upon the best interests of the child. In determining decision-making responsibility, the court may allocate the decision-making responsibility with respect to each issue affecting the child mutually between both parties or individually to one or the other party or any combination thereof. In determining the best interests of the child for purposes of allocating decision-making responsibilities, the court shall consider, in addition to the factors set forth in paragraph (a) of this subsection (1.5), all relevant factors including:

(I) Credible evidence of the ability of the parties to cooperate and to make decisions jointly;

(II) Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment, and mutual support that would indicate an ability as mutual decision makers to provide a positive and nourishing relationship with the child;

(III) Whether an allocation of mutual decision-making responsibility on any one or a number of issues will promote more frequent or continuing contact between the child and each of the parties;

(IV) Whether one of the parties has been a perpetrator of child abuse or neglect under section 18-6-401, C.R.S., or under the law of any state, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of child abuse or neglect, then it shall not be in the best interests of the child to allocate mutual decision-making with respect to any issue over the objection of the other party or the representative of the child.

(V) Whether one of the parties has been a perpetrator of spouse abuse as defined in subsection (4) of this section, which factor shall be supported by credible evidence. If the court makes a finding of fact that one of the parties has been a perpetrator of spouse abuse, then it shall not be in the best interests of the child to allocate mutual decision-making responsibility over the objection of the other party or the representative of the child, unless the court finds that the parties are able to make shared decisions about their children without physical confrontation and in a place and manner that is not a danger to the abused party or the child.

(2) The court shall not consider conduct of a party that does not affect that party's relationship to the child.

(3) In determining parenting time or decision-making responsibilities, the court shall not presume that any person is better able to serve the best interests of the child because of that person's sex.

(4) If a party is absent or leaves home because of spouse abuse by the other party, such absence or leaving shall not be a factor in determining the best interests of the child. For the purpose of this subsection (4), "spouse abuse" means the proven threat of or infliction of physical pain or injury by a spouse or a party on the other party.

(5) Repealed.

(6) In the event of a medical emergency, either party shall be allowed to obtain necessary medical treatment for the minor child or children without being in violation of the order allocating decision-making responsibility or in contempt of court.

(7) In order to implement an order allocating parental responsibilities, both parties may submit a parenting plan or plans for the court's approval that shall address both parenting time and the allocation of decision-making responsibilities. If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court, on its own motion, shall formulate a parenting plan that shall address parenting time and the allocation of decision-making responsibilities.

(8) The court may order mediation, pursuant to section 13-22-311, C.R.S., to assist the parties in formulating or modifying a parenting plan or in implementing a parenting plan specified in subsection (7) of this section and may allocate the cost of said mediation between the parties.

 

Source: L. 71: R&RE, p. 529, § 1. C.R.S. 1963: § 46-1-24. L. 79: (3) added, p. 645, § 1, effective March 2. L. 81: (4) added, p. 904, § 1, effective May 22. L. 83: (1) R&RE and (1.5) and (5) added, p. 647, § § 3, 4, effective June 10. L. 87: (1.5) (g) to (1.5)(m) added and (5) repealed, pp. 574, 576, § § 3, 6, effective July 1; (1.5)(m) repealed, p. 1578, § 22, effective July 1. L. 98: Entire section amended, p. 1380, § 10, effective February 1, 1999.

Cross references: For the "Uniform Child Custody Jurisdiction Act", see article 13 of this title.

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I. General Consideration.
II. Determination of Best Interests.

A. In General.

B. Evidence.

C. Discretion of Court.

D. Custody and Visitation.

III. Tender years Doctrine.
IV. Jurisdiction of Court.
V. Motions and Orders.

 

I. GENERAL CONSIDERATION.

Am. Jur.2d . See 24 Am. Jur.2d, Divorce and Separation, § § 931-938, 943.

C.J.S. See 27C C.J.S., Divorce, § § 620-631.

Law reviews. For note, "Legislation: Domestic Relations — New Colorado Statutes Govern Procedure in Contested Child Custody Cases", see 40 U. Colo. L. Rev. 485 (1968). For article, "Legislative Update", see 12 Colo. Law. 1257 (1983). For article, "Moving the Children Out of State", see 12 Colo. Law. 1450 (1983). For article, "Helping Joint Custody Work", see 14 Colo. Law. 1984 (1985). For article, "Dealing with Sexual Abuse Allegations in Custody and Visitation Disputes — Parts I and II", see 16 Colo. Law. 1005 and 1225 (1987). For article, "Children of Divorce", see 16 Colo. Law. 1853 (1987). For article, "The Role of the Guardian ad Litem in Custody and Visitation Disputes", see 17 Colo. Law. 1301 (1988). For article, "Custody Evaluations in Colorado", see 18 Colo. Law. 1523 (1989). For article, "Drafting the Joint Parenting Plan", see 18 Colo. Law. 2117 (1989). For article, "Custody Cases and the Theory of Parental Alienation Syndrome", see 20 Colo. Law. 53 (1991). For article, "Relocation: An Issue In Need of Clarification in Colorado", see 20 Colo. Law. 2517 (1991). For article, "Elimination of ' Custody' in Colorado: The Impact of H.B.1183", see 27 Colo. Law. 83 (September 1998).