of Tooker , 444 P.3d 856 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 23, 2019
2019COA83
No. 18CA0589, Marriage of Tooker — Family Law — Post-
Dissolution — Modification and Termination of Provisions for
Maintenance, Support, and Property — Modification of Child
Support
In this post-dissolution of marriage dispute, a division of the
court of appeals considers whether the district court erred in
modifying husband’s spousal maintenance and child support
obligations by not including the tuition assistance and book stipend
husband received under the Post-9/11 Veterans Educational
Assistance Act of 2008 as “income for purposes of calculating”
maintenance and child support. The division concludes that
because these benefits were not available for husband’s
discretionary use or to reduce his daily living expenses, the district
court properly excluded them when calculating husband’s gross
income.
The division also rejects mother’s contentions that the district
court erred in not including husband’s potential timber income in
calculating maintenance and child support and not making
sufficient findings to modify husband’s maintenance obligation.
COLORADO COURT OF APPEALS 2019COA83
Court of Appeals No. 18CA0589
El Paso County District Court No. 14DR3131
Honorable Erin Sokol, Judge
In re the Marriage of
Jennifer Ann Tooker,
Appellant,
and
Mark Glen Tooker,
Appellee,
and Concerning
El Paso County Child Support Services,
Intervenor.
ORDER AFFIRMED
Division VII
Opinion by JUDGE DUNN
Ashby and Martinez*, JJ., concur
Announced May 23, 2019
Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant
No Appearance for Appellee
Marrison Family Law, LLC, Mikayla Shearer, Colorado Springs, Colorado, for
Intervenor
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 The Post-9/11 Veterans Educational Assistance Act of 2008,
referred to here as the GI Bill, 38 U.S.C. §§ 3301-3327 (2018),
provides eligible veterans with education benefits such as tuition
assistance, a stipend for books and supplies, and a monthly
housing allowance, 38 U.S.C. § 3313(a), (c)(1) (2018). Mark Glen
Tooker, a retired veteran, took advantage of the GI Bill’s benefits to
attend college.
¶2 In this post-dissolution of marriage dispute, Mark’s former
spouse, Jennifer Ann Tooker, challenges the district court’s order
modifying Mark’s spousal maintenance and child support
obligations.1 More specifically, she contends the district court erred
in not (1) including the tuition assistance and book stipend Mark
received under the GI Bill as income for purposes of calculating
maintenance and child support; (2) including Mark’s potential
timber income in calculating maintenance and child support; and
(3) making sufficient findings to modify Mark’s maintenance
obligation. Because we disagree with these contentions, we affirm.
1For clarity, and without intending any disrespect to the parties, we
will refer to the parties by their first names.
1
I. Background
¶3 The district court entered a decree dissolving the parties’
twenty-year marriage in 2015. At that time, Mark and Jennifer had
two biological children. Jennifer also had a daughter, A.C.J.T., who
was not Mark’s biological child.
¶4 As part of the dissolution decree, and based on the parties’
agreed parenting plan, the district court excluded A.C.J.T. from the
child support calculation but ordered Mark to pay child support for
the Tookers’ two biological children, as well as maintenance.
¶5 Within the next few years, Jennifer and Mark each sought to
modify Mark’s monthly obligations. For her part, Jennifer asserted
that Mark was A.C.J.T.’s legal parent and moved to modify the child
support obligation to include A.C.J.T. 2 She also moved to modify
maintenance, arguing that circumstances had changed due to a
“more than 10%” decrease in her income.
¶6 For his part, Mark sought modification or termination of
maintenance based on other changed circumstances, including his
2While the modification proceedings were pending, the Tookers’ two
biological children became emancipated.
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reduced income (due to his military retirement) and, in his view,
Jennifer’s “dramatically increased income.”
¶7 While the modification motions were pending, the juvenile
court, in a separate proceeding not contested here, determined that
Mark was A.C.J.T.’s legal father.
¶8 Not long after, the district court held an evidentiary hearing on
the parties’ motions to modify maintenance and Jennifer’s motion
to modify child support. It declined to modify Mark’s maintenance
obligation and, as relevant here, ordered Mark to pay $563 a month
in child support for A.C.J.T. When calculating Mark’s income, the
district court included his military retirement; forty hours per week
of imputed employment income; and, from the GI Bill, Mark’s
tuition assistance, book stipend, and housing allowance.
¶9 After the court entered the modification order, Mark sought
reconsideration under C.R.C.P. 59. With respect to the GI Bill
benefits, Mark argued that the tuition assistance and book stipend
benefits should not be included as income for purposes of child
support and maintenance. But he acknowledged that “the housing
allowance stipend paid directly to [him] should be included.” The
district court agreed, finding that the tuition assistance payment
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was “made directly to [Mark’s] educational institution” and he was
not free to use this money on daily living expenses. The court
similarly found the GI Bill allotted the book stipend for Mark’s
“educational books” and he could not use the stipend for
discretionary expenses.
¶ 10 Given this, the district court excluded the GI Bill tuition
assistance and book stipend benefits from Mark’s income. It then
recalculated his income using his military retirement, the GI Bill
housing allowance, and forty hours per week of imputed
employment income. The court concluded that Mark’s monthly
income was $3749. Based on the recalculated income, the district
court ordered Mark to pay $553 per month in child support. And
applying “the statutory formula” for maintenance to Mark’s
recalculated income, the district court found that he owed “$0.00”
and therefore terminated his maintenance obligation.
II. The GI Bill Benefits
¶ 11 Jennifer contends the district court erred in excluding Mark’s
GI Bill tuition assistance and book stipend benefits from his income
for purposes of calculating maintenance and child support. We are
not persuaded.
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¶ 12 We review maintenance and child support orders for an abuse
of discretion. See In re Marriage of Thorstad, 2019 COA 13, ¶ 27
(maintenance modification); In re Marriage of Davis, 252 P.3d 530,
533 (Colo. App. 2011) (child support modification). But we review
de novo whether the court applied the correct legal standard. See
Thorstad, ¶ 27 (maintenance modification); Davis, 252 P.3d at 533(child support modification).
¶ 13 A district court must determine the parties’ gross incomes
before calculating maintenance and child support. See
§ 14-10-114(3)(a)(I)(A), C.R.S. 2018 (maintenance);
§ 14-10-115(1)(b)(I), (5)(a), C.R.S. 2018 (child support). A party’s
gross income for this purpose means “income from any source.”
§ 14-10-114(8)(c)(I); § 14-10-115(5)(a)(I).
¶ 14 The statutes, however, say nothing about GI Bill benefits,
neither including them in the definition of gross income, see
§ 14-10-114(8)(c)(I) (nonexclusive list of income included in
definition of gross income for maintenance); § 14-10-115(5)(a)(I)
(same for child support), nor excluding them from the definition,
see § 14-10-114(8)(c)(II) (excluding certain income from gross
5
income for purposes of maintenance); § 14-10-115(5)(a)(II) (same for
purposes of child support).
¶ 15 And Jennifer points us to no authority — nor have we found
any — that has included (or excluded) GI Bill tuition assistance and
book stipend benefits in a former spouse’s gross income for
purposes of maintenance and child support. But courts have
considered whether payments made for a spouse’s benefit are
includable as gross income under the maintenance and child
support statutes when those payments are not currently available
for the spouse’s general living expenses. See, e.g., Davis, 252 P.3d
at 535; In re Marriage of Mugge, 66 P.3d 207, 210 (Colo. App. 2003).
¶ 16 Mugge is particularly instructive. There, the father retired in
exchange for an employer contribution to his pension plan. 66 P.3d
at 209. On his retirement, the father elected not to take a
distribution but to roll his pension into another plan. Id. The
mother moved to modify the father’s child support obligation,
arguing the employer’s pension contribution should be included as
gross income for child support purposes. Id. at 209-10. The Mugge
division disagreed. Id. at 211. It recognized that the father did not
have the option of directly receiving the contribution “as wages.” Id.6
And it thus concluded that, before actual distribution to the father
is made, employer contributions to his retirement account or
pension plan do not “constitute gross income” for child support
purposes. Id.¶ 17 Some years later, the Davis division considered whether an
employer’s contributions to the husband’s 401(k) plan and health
insurance plans should be included in his income for child support
purposes. 252 P.3d at 534-35. The division concluded that the
district court did not err in excluding the employer’s contributions
from the husband’s gross income. Id. at 535. In reaching this
conclusion, it found that, as in Mugge, the husband “did not have
the option to take [the employer’s] contributions as wages and use
them for general living expenses.” Id.; see also In re Marriage of
Mellott, 93 P.3d 1219, 1221-22 (Kan. Ct. App. 2004) (concluding
that employer tuition reimbursements were not income under
Kansas’s child support guidelines because the tuition
reimbursements did not reduce the father’s living expenses).
¶ 18 The principle that emerges from these cases is that, to be
included as gross income for purposes of maintenance and child
support, benefits received by an individual (if not otherwise
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excluded from the definition of gross income in the maintenance
and child support statutes) must be available for the individual’s
discretionary use or to reduce daily living expenses. With this in
mind, we turn to the tuition assistance and book stipend benefits
Mark received under the GI Bill.
¶ 19 Jennifer does not dispute that Mark’s tuition assistance
benefit was not paid to him but, rather, was paid directly to his
college. A letter from the Department of Veterans Affairs introduced
at the modification hearing confirmed that the Department “issued
a tuition and fees payment to [Mark’s] school[] on [his] behalf.” And
nothing in the record shows that Mark had any ability to receive the
GI Bill tuition assistance benefit personally or use it for general
living or other discretionary expenses.
¶ 20 Because the tuition assistance benefit was not available to
Mark for general living expenses and would in no discernable way
assist him in paying maintenance or child support, we conclude
that the district court properly excluded the tuition assistance
benefit as gross income for purposes of calculating maintenance
and child support. See Davis, 252 P.3d at 535; Mugge, 66 P.3d at
211; see also Mellott, 93 P.3d at 1221-22.
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¶ 21 We reach the same conclusion with respect to the book
stipend. Though the relatively modest stipend appears to be paid
directly to Mark, the record supports the district court’s finding that
it was “allotted for [his] educational books and . . . may not be used
at [his] discretion to decrease his daily living expenses.” And
Jennifer neither argues otherwise nor points to any record evidence
suggesting differently. Given this, the district court did not abuse
its discretion in excluding the book stipend from Mark’s gross
income. See Davis, 252 P.3d at 536 (concluding that the district
court did not err in excluding the employer’s health insurance
stipend from the employee’s gross income for child support
purposes because the stipend was not significant and did not
reduce living expenses); cf. In re Marriage of Long, 921 P.2d 67, 69
(Colo. App. 1996) (receiving free military housing and utilities was
income for purposes of child support because the noncash benefit
relieved the husband of “what is arguably his primary necessary
expense” and increased his income “by approximately 20%”).
¶ 22 We are not persuaded otherwise by Jennifer’s reliance on Oley
v. Branch, 762 S.E.2d 790 (Va. Ct. App. 2014). There, the Virginia
Court of Appeals concluded that a Federal Pell Grant (a form of
9
financial assistance given to eligible students with no obligation to
repay) was part of the mother’s gross income for purposes of child
support. Id. at 796-97. But in reaching this conclusion, the court
focused on the language of Virginia’s child support statute that
states gross income includes “all income from all sources” and the
fact that Virginia courts had interpreted this language to mean any
source of income “unless specifically excluded.” Id. at 796 (quoting
Frazer v. Frazer, 477 S.E.2d 290, 299-300) (Va. Ct. App. 1996)).
Because the child support statute did not “specifically exclude
federal education grants,” the court there concluded that the
mother’s Federal Pell Grant was part of her gross income. Id. at
797. But see In re Marriage of Syverson, 931 P.2d 691, 698 (Mont.
1997) (concluding that only the portion of a Federal Pell Grant that
exceeded the mother’s tuition bill should be considered gross
income because the Montana child support rule defined gross
income to include “grants . . . intended to subsidize the parent’s
living expenses”) (citation omitted). Because Colorado courts
interpret this state’s maintenance and child support statutes
differently, Oley does not change our analysis. See Davis, 252 P.3d
at 535; Mugge, 66 P.3d at 211.
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¶ 23 For these reasons, we perceive no error in the district court’s
exclusion of the GI Bill tuition assistance and book stipend benefits
from Mark’s gross income for purposes of modifying Mark’s
maintenance obligation and calculating child support for A.C.J.T.
III. Potential Income
¶ 24 Jennifer next contends the court erred in refusing to impute
additional “potential income” to Mark when determining his gross
income. We again are not persuaded.
¶ 25 If a party is voluntarily unemployed or underemployed, child
support and maintenance are calculated based on the party’s
potential income. § 14-10-114(8)(c)(IV) (maintenance);
§ 14-10-115(5)(b)(I) (child support).
¶ 26 “Potential income” is described as the amount a party could
earn from a full-time job commensurate with the party’s
demonstrated earning ability. People in Interest of A.R.D., 43 P.3d
632, 637 (Colo. App. 2001). In determining potential income, the
district court may consider several factors, including the party’s
historical income, education, and work experience. See id.¶ 27 The district court has broad discretion in determining income,
and whether to impute income to a party is typically a question of
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fact that we will not disturb if supported by the record. See People
v. Martinez, 70 P.3d 474, 480 (Colo. 2003); see also In re Marriage of
Connerton, 260 P.3d 62, 66 (Colo. App. 2010).
¶ 28 At the hearing on the motions to modify child support and
maintenance, Jennifer argued Mark should be imputed income for
forty hours per week of employment. She also argued that the
court should consider timber on Mark’s property as a resource
when determining whether his maintenance obligation should be
modified due to changed circumstances. In contrast, Mark argued
that he should not be imputed any additional income because he is
enrolled as a full-time student at an online college.
¶ 29 The district court rejected Mark’s argument and imputed “40
hours of employment income” at minimum wage to him (a decision
not challenged here). Although the court acknowledged that Mark
had available “timber from a property he owns,” it declined to
impute any additional amounts to Mark for this “potential income.”
¶ 30 Jennifer argues that the district court should have imputed
additional potential income to Mark based on his timber ownership.
In particular, she argues that Mark could receive additional income
through timber sales, as he did in 2015. But she points us to no
12
authority supporting her contention that a one-time (or possible
future) sale of a good should be included as imputed income — in
addition to forty hours per week of imputed employment income.
See, e.g., A.R.D., 43 P.3d at 637 (describing potential income as
related to full-time job); In re Marriage of Jaeger, 883 P.2d 577, 582
(Colo. App. 1994) (considering historical employment income when
imputing income).
¶ 31 In any event, Mark testified he no longer received income from
the timber. And while Jennifer testified Mark “could make a phone
call and have a check well over a million dollars,” nothing in the
record shows the amount or value of timber available for sale. So,
any inferences and conclusions to be drawn from the conflicting
evidence were for the district court to resolve. In re Marriage of
Lewis, 66 P.3d 204, 207 (Colo. App. 2003).
¶ 32 We therefore conclude the district court didn’t abuse its
discretion in declining to impute non-employment income related to
possible future timber sales. Given this conclusion, we necessarily
reject Jennifer’s related argument that the court “made no findings
of fact as to the amount of this potential income.”
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IV. Modification of Maintenance
¶ 33 Jennifer next argues that the district court failed to make
sufficient findings of fact and conclusions of law in modifying
Mark’s maintenance. We don’t agree.
¶ 34 The decision whether to modify maintenance is within the
district court’s sound discretion based on the facts presented. In re
Marriage of Nelson, 2012 COA 205, ¶ 27. Absent an abuse of that
discretion, we will not disturb the court’s ruling on review. Id.¶ 35 A district court may modify maintenance on a showing of
changed circumstances so substantial and continuing as to make
the existing maintenance terms unfair. § 14-10-122(1)(a), C.R.S.
2018; see Nelson, ¶ 26. In making this determination, the court
must examine the circumstances pertinent to initially awarding
maintenance under section 14-10-114, including the relevant
circumstances of both parties. In re Marriage of Kann, 2017 COA
94, ¶ 73; Nelson, ¶ 26. However, the determination is not the same
as when making an original award; rather, the issue when
considering a motion to modify is whether the terms of the original
award have become unfair. In re Marriage of Weibel, 965 P.2d 126,
128-29 (Colo. App. 1998).
14
¶ 36 After the hearing on the parties’ modification motions, the
district court found that since the entry of the initial maintenance
award, Mark had retired from the military, he was a full-time
student, and his income had decreased to $3749 per month (from
$6371 when maintenance was first ordered). See
§ 14-10-114(3)(c)(II), (V); see also § 14-10-122(1)(a).
¶ 37 With respect to Jennifer’s income, the district court concluded
that she earned roughly the same monthly income at the time of the
modification hearing as she had at the time the court initially
awarded maintenance. See § 14-10-114(3)(c)(I), (V); see also
§ 14-10-122(1)(a).
¶ 38 Based on this evidence, the district court found that Mark had
“shown a change in circumstances under . . . § 14-10-122, which is
so substantial and continuing as to make the terms of” the original
maintenance award “unfair.” Applying the maintenance guidelines,
the district court found that Mark’s “suggested award of $0.00” was
“fair, equitable, and not unconscionable.”
¶ 39 The district court’s findings sufficiently support its
determination that substantial and continuing changed
circumstances made the initial maintenance award unfair. See
15
Kann, ¶ 73. We therefore don’t agree with Jennifer that the district
court “made no findings regarding the factors listed under [section]
14-10-114(3)(c).”
V. Conclusion
¶ 40 We affirm the district court’s order terminating Mark’s
maintenance obligation and modifying his child support obligation.
JUDGE ASHBY and JUSTICE MARTINEZ concur.
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