In Re the Marriage Nimmo

891 P.2d 1002, 19 Brief Times Rptr. 438, 1995 Colo. LEXIS 44, 1995 WL 117066
CourtSupreme Court of Colorado
DecidedMarch 13, 1995
Docket94SC134
StatusPublished
Cited by37 cases

This text of 891 P.2d 1002 (In Re the Marriage Nimmo) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage Nimmo, 891 P.2d 1002, 19 Brief Times Rptr. 438, 1995 Colo. LEXIS 44, 1995 WL 117066 (Colo. 1995).

Opinions

Justice ERICKSON

delivered the Opinion of the Court.

We granted certiorari to review In re Marriage of Seanor, 876 P.2d 44 (Colo.App. 1993).1 The court of appeals concluded the trial court properly denied Nick Nimmo’s motion to compel discovery of Margaret E. Nimmo’s (now Margaret E. Seanor) (Ms. Seanor’s) present spouse’s income for purposes of section 14-10-115(7)(a)(I)(A), 6B C.R.S. (1987 & 1994 Supp.).2 We affirm in part, reverse in part, and return this case to the court of appeals for remand for further proceedings consistent with this opinion.

I

A decree of dissolution of marriage was entered on May 4, 1989. In that decree, the trial court approved and incorporated the parties’ separation agreement. Among other things, the agreement granted Ms. Seanor primary physical custody and Nimmo sole legal custody of the parties’ two children. The agreement provided that Nimmo would pay maintenance to Ms. Seanor until June 1991. After June 1991, Nimmo would pay child support in accordance with section 14-10-115, 6B C.R.S. (1987 & 1994 Supp.).

In October 1991, Ms. Seanor filed a motion to increase child support payments. In preparation for the hearing, Nimmo submitted interrogatories in November 1991. The interrogatories sought information from. Ms. Seanor regarding her income since June 1, 1991. Nimmo’s definition of “income” included “all funds available for ... [Ms. Seanor’s] use, including gifts.” Nimmo wanted a list of “all gifts, including without limitation, jewelry, clothes, entertainment, travel, and restaurant meals provided to ... [Ms. Seanor] or to the children” by Ms. Seanor’s present spouse (Mr. Seanor). Nimmo also requested a list of “all amounts paid by Mr. Seanor either directly to ... [Ms. Seanor] or to third parties from which ... [Ms. Seanor] received a benefit....”3 The interrogatories also [1005]*1005sought copies of checking account registers, bank statements, and credit card records.

When Ms. Seanor failed to provide answers to the interrogatories, Nimmo filed a motion to compel discovery. The trial court denied the motion on the grounds that the income and contributions of Mr. Seanor were immaterial to the determination of Nimmo’s child support obligation. Also, because Mr. and Ms. Seanor shared checking and savings accounts, granting the motion would constitute an invasion of Mr. Seanor’s privacy.4

In its order of October 14, 1992, the trial court granted Ms. Seanor’s motion to increase Nimmo’s child support payments. The trial court found Ms. Seanor had no income. Nimmo was ordered to pay, based on his income, $1,341 per month as child support plus $4,906 in back payments. Nim-mo appealed.

The court of appéals found Nimmo’s definition of income to be “significantly broader than the definition of income set forth in the child support guidelines.” Seanor, 876 P.2d at 49. The court of appeals emphasized the common law rule that the income of third parties is not considered when determining income for child support purposes. See id. at 49-50. The court of appeals concluded the child support guidelines did not change the common law rule and held that “the trial court did not abuse its discretion in denying the motion to compel.” Id. at 50.

II

C.R.C.P. 26(b)(1) allows parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.... ” Child support obligations are determined by establishing the “combined gross income” which “means the combined monthly adjusted gross incomes of both parents.” § 14-10-115(10)(a)(II), 6B C.R.S. (1987 & 1994 Supp.). “ ‘[Ajdjusted gross income’ means gross income less preexisting child support obligations and less alimony or maintenance actually paid by a parent.” Id. Using the statutory schedule, child support amounts are extrapolated based on the combined gross income and the number of children due support. See § 14 — 10—115(10)(b), 6B C.R.S. (1987 & 1994 Supp.). Each parent’s obligation is determined by dividing the combined gross income “in proportion to their adjusted gross incomes.” § 14-10-115(10)(a)(I), 6B C.R.S. (1987).

The statutory definition of “ ‘[gjross income’ includes income from any source and includes, but is not limited to, income from salaries, wages, ... commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers’ compensation benefits, unemployment insurance benefits, disability insurance benefits, gifts, prizes, and alimony or maintenance received.” § 14 — 10—115(7)(a)(I)(A).5 For purposes of calculating “gross income,” the plain language of the statute “includes all payments from a financial resource, whatever the source thereof.” In re Marriage of Armstrong, 831 P.2d 501, 503 (Colo.App.1992); In re Marriage of Fain, 794 P.2d 1086, 1087 (Colo.App.1990).

The court of appeals properly noted that the factors considered in determining child support at common law did not include [1006]*1006the financial resources of third-parties. See In re Marriage of Seanor, 876 P.2d 44, 49 (Colo.App.1993); see also In re Marriage of Conradson, 43 Colo.App. 432, 604 P.2d 701 (1979) (holding that the financial resources of an aunt with whom the child was living were not to be considered in making a support award); Garrow v. Garrow, 152 Colo. 480, 382 P.2d 809 (1963) (concluding that the contributions of third-parties were immaterial to a determination of father’s duty of support). The opinion also correctly stated that “by the adoption of the child support guidelines, the General Assembly did not intend to change the common law rule set forth” in Conradson and Garrow. Seanor, 876 P.2d at 50. Based on these principles, the court of appeals concluded the income of Mr. Seanor was not relevant to the determination of child support. See id.

The court of appeals came to the correct conclusion concerning the discovery. of Mr. Seanor’s income. However, the focus of the court’s opinion failed to adequately address the plain language of the child support guidelines. The source of money available to Ms. Seanor is not the relevant factor. See Harris v. Superior Court, 3 Cal.App.4th 661, 4 Cal.Rptr.2d 564, 567 (1992).6 Instead, under the guidelines the existence of that money is the relevant inquiry. See id. The guidelines require an examination of the existence of parental income. The source of that income is irrelevant to a determination of child support.

Income may come “from any source,” and the definition of “gross income” expressly includes “gifts.” § 14-10-115(7)(a)(I)(A). However, the income “could come from relatives, friends, investments, trusts, or the lottery.” Harris, 4 Cal.Rptr.2d at 569.

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Bluebook (online)
891 P.2d 1002, 19 Brief Times Rptr. 438, 1995 Colo. LEXIS 44, 1995 WL 117066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-nimmo-colo-1995.