In Re Marriage of Marson

929 P.2d 51, 1996 Colo. App. LEXIS 339, 1996 WL 683959
CourtColorado Court of Appeals
DecidedNovember 29, 1996
Docket96CA0142
StatusPublished
Cited by15 cases

This text of 929 P.2d 51 (In Re Marriage of Marson) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Marson, 929 P.2d 51, 1996 Colo. App. LEXIS 339, 1996 WL 683959 (Colo. Ct. App. 1996).

Opinion

Opinion by

Judge TAUBMAN.

In this post-dissolution of marriage proceeding, Steven M. Marson (father) appeals the district court’s order increasing the child support payable to Drena D. Marson (mother) and awarding her attorney fees. We affirm in part, vacate in part, and remand with directions.

The parties’ marriage of fourteen years was dissolved in 1985, and mother was awarded custody of their daughter. Father was awarded parenting time and was ordered to pay child support in the amount of $265 per month and to maintain health insurance for the child. Pursuant to a court-approved stipulation between the parties, child support was modified in 1990 to $862 per month, and the parties agreed to share equally any reasonable and necessary expenses for their daughter’s medical, dental, or vision care not covered by insurance.

Mother filed a motion to modify child support in 1994. Father, who lived in California and was acting pro se, did not attend the hearing held before a magistrate. Prior to the hearing, father filed various letters and documents with the court, and requested that his “evidence package” be reviewed during one-half of the two-hour hearing.

Noting that father had failed to appear at the hearing, the magistrate found him in “default.” Mother’s motion to modify child support was granted, and child support was increased to $497 per month. This change was based in part on a reduction of the number of father’s parenting time from 75 to 60 overnights. Furthermore, father was ordered to pay a $675 arrearage on child support, and to continue to share equally in the payment of the daughter’s uninsured medical, dental, and orthodontia expenses. Father was ordered to pay $881 for his one-half share of the past-due orthodontia expenses, all of the past-due medical expenses in the amount of $812, $2,625 to reimburse mother for father’s attorney fees stemming from the permanent orders, and $500 for part of -the attorney fees mother incurred in bringing the motion to modify child support.

Upon father’s motion to review the magistrate’s order, the district court affirmed the modification of child support and the $500 award of attorney fees, but reversed the $2,625 award of attorney fees.

As- a threshold matter, we note that father .has attached to his brief certain documents,including a financial affairs affidavit, which do not appear in the record on appeal. These documents will not be considered. See In re Marriage of Murray, 790 P.2d 868 (Colo.App.1989). Furthermore, father requests relief pursuant to C.R.C.P. 60 for various discovery errors, fraud, and misrepresentation. However, because a C.R.C.P. 60 motion was not filed, these issues cannot become the subject of this appeal. See In re Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718 (Colo.1992) (arguments not presented to, considered, or ruled upon by the trial court may not be raised for the first time on appeal).

I. Child Support

Father contends that the district court made various errors in reviewing the magistrate’s modification of child support. We agree with some, but not all, of these contentions.

A.

First, father contends that the $881 he was ordered to pay for orthodontia expenses was unsubstantiated, and that the amount of medical expenses was erroneous because, under the court-approved stipulation, the amount should have been shared equally by the parties. We conclude that the issue of these expenses must be reconsidered upon remand to the district court.

Section 14-10-115(13.5)(h)(I), C.R.S. (1996 Cum.Supp.) provides that extraordinary medical expenses incurred on behalf of a child must be added to the basic child support obligation and shared by the parents in proportion to their adjusted gross incomes. Extraordinary medical expenses under § 14-10 — 115(13.5)(h)(II), C.R.S. (1996 Cum.Supp.) are uninsured expenses in excess of $100 for *53 a single illness or condition incurred for, inter alia, reasonably necessary orthodontia, dental treatment, and any uninsured chronic health problem. In re Marriage of Ahrens, 847 P.2d 257 (Colo.App.1993).

The inclusion of extraordinary medical expenses in the child support calculation contemplates ongoing, recurring expenses for chronic medical problems, thereby rendering it appropriate to increase, on a relatively permanent basis, the overall support obligation. See In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App.1990) (extraordinary medical expenses were required to be divided pursuant to statute even though the parties had previously agreed for each to pay one-half of the expenses). Conversely, if the uninsured medical expenses do not exceed $100 for a single illness or condition, the custodial parent is to bear those costs. In re Marriage of Finer, 920 P.2d 325 (Colo.App.1996).

Neither the magistrate nor the district court, had the benefit of Finer when reviewing the motion to modify child support. Thus, on remand, the district court should determine whether the child’s uninsured medical expenses are extraordinary within the meaning of the statute. If so, the child support payment should be revised accordingly. If not, father should not be ordered to make any contribution toward payment of those costs. See In re Marriage of Finer, supra. However, any expenses incurred pri- or to the filing of mother’s motion to modify should be determined in accordance with the provisions of the court-approved stipulation, while expenses incurred after the filing of the motion should be determined in accordance with Finer. See § 14-10-122(l)(d), C.R.S. (1996 Cum.Supp.).

B.

Next, father contends that wife’s gross income was erroneously determined because income from two part-time jobs and income from her private speech pathology practice was not included. We disagree.

In calculating child support, the magistrate used the $4,347 mother earned monthly from her “primary” source of income as a public school teacher. At the hearing, wife testified as to her income from her primary job and two part-time jobs, and no evidence was presented as to her private practice. While the magistrate recognized that mother’s total gross monthly income from her primary job and two part-time jobs totalled $4,955, he expressed some uncertainty as to whether the income from extra part-time employment should be included on the child support worksheet.

Under Colo. Sess. Laws 1992, ch. 39, § 14-10-115(7)(a)(I) at 190, in effect at the time of the hearing, “gross income” for purposes of calculating child support included income from any source, including income from wages and salaries. Overtime pay was included in gross income only if overtime was required by the employer as a condition of employment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dauwe v. Fruitland
Colorado Court of Appeals, 2026
Estate of Sherwin
Colorado Court of Appeals, 2026
5 In the Interest of NJC
2019 COA 153 (Colorado Court of Appeals, 2019)
of Alvis
2019 COA 97 (Colorado Court of Appeals, 2019)
Freedom from Religion Found., Inc. v. Hickenlooper
412 P.3d 392 (Colorado Court of Appeals, 2012)
In Re Mb-M.
252 P.3d 506 (Colorado Court of Appeals, 2011)
In Re Marriage of Parr and Lyman
240 P.3d 509 (Colorado Court of Appeals, 2010)
City of Fort Morgan v. Eastern Colorado Publishing Co.
240 P.3d 481 (Colorado Court of Appeals, 2010)
In re the Marriage of Salby
126 P.3d 291 (Colorado Court of Appeals, 2005)
In Re the Marriage of Emerson
77 P.3d 923 (Colorado Court of Appeals, 2003)
In Re the Marriage of Upson
991 P.2d 341 (Colorado Court of Appeals, 1999)
In Re Marriage of Rice and Foutch
987 P.2d 947 (Colorado Court of Appeals, 1999)
In Re the Marriage of Eisenhuth
976 P.2d 896 (Colorado Court of Appeals, 1999)
S.F.E. ex rel. T.I.E.
981 P.2d 642 (Colorado Court of Appeals, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
929 P.2d 51, 1996 Colo. App. LEXIS 339, 1996 WL 683959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-marson-coloctapp-1996.