In Re the Marriage of Bregar

952 P.2d 783, 1997 Colo. App. LEXIS 170, 1997 WL 378198
CourtColorado Court of Appeals
DecidedJuly 10, 1997
Docket96CA0780
StatusPublished
Cited by706 cases

This text of 952 P.2d 783 (In Re the Marriage of Bregar) 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 the Marriage of Bregar, 952 P.2d 783, 1997 Colo. App. LEXIS 170, 1997 WL 378198 (Colo. Ct. App. 1997).

Opinion

Opinion by

Judge TAUBMAN.

Conrad T. Swanson (husband) appeals from an order of the trial court increasing his child support obligation and ordering him to pay attorney fees to Janet A. Bregar (wife). We affirm in part, reverse in part, and remand for further proceedings.

As part of the decree of dissolution entered in 1989, husband agreed to pay child support in the amount of $800 per month and was awarded the tax exemptions for both children. In January 1995, wife moved for an increase in child support and husband responded that there should be a decrease.

In 1992, husband, an attorney, was fired from the law firm in which he had been working at the time of the dissolution. He had been earning $4,250 per month there. He then earned approximately $27,000 from a solo practice in 1993. At the time of the hearing in this matter, he had been employed with a law firm since January 1994 but testified that he had not earned any money and was indebted to the firm for over $10,000. He testified that he did not foresee any income from his work as a lawyer because he had been unsuccessful in obtaining alternative legal employment.

Husband also testified that he had started a cattle ranch in April 1994 because he had wanted to raise cattle since childhood. However, he testified that he had not earned any *785 money from this financially unsuccessful endeavor.

Additionally, husband received proceeds from the sale of stock between 1993 and 1995 totaling over $320,000, almost all of which was taxed as a capital gain.

Husband’s capital gains resulted from the sale of shares of stock he had received as part of the permanent orders. Because, the basis of those shares of stock was negligible, the parties recognized at the time of permanent orders that nearly all the proceeds from any later sale of this stock would be taxed as capital gains. Consequently, as part of permanent orders, husband was awarded additional shares of stock equal to 16.5% of the marital debt so that the parties would share equally in the anticipated tax burden when husband sold the shares of stock to pay the marital debt.

After a two-day evidentiary hearing, the magistrate-determined that husband was voluntarily underemployed and, in addition to his undisputed monthly income of $1,309, imputed to him $4,250 per month as potential earnings as a lawyer and $1,500 per month as a reasonable return on the total proceeds from the sale of stock. Child support was significantly increased. In addition, Wife was awarded $11,000 in attorney fees. On review, the trial court made minor corrections and, otherwise, affirmed.

Initially, we note that although wife argued before the trial court that the entire amount of husband’s proceeds from the sale of stock should be characterized as income based on § 14-10-115(7)(a)(I)(A), C.R.S. (1996 Cum. Supp.), the trial court ruled otherwise, and she has not appealed from that ruling.

I.

Husband first contends that the trial court erred in determining that he was voluntarily underemployed. We disagree.

The trial court is authorized under §§ 14^10-115(7)(a) and 14-10-115(7)(b)(I), C.R.S. (1996 Cum.Supp.) to calculate child support based upon a determination of a parent’s potential income if the parent is “voluntarily unemployed or underemployed.” In re Marriage of Jaeger, 883 P.2d 577 (Colo.App.1994).

Factual findings of the trial court will not be disturbed on appeal unless clearly erroneous and not supported by the record. In re Marriage of Udis, 780 P.2d 499 (Colo.1989). Further, the determination of the credibility of witnesses and the weight, probative force, and sufficiency of the evidence and the inferences and conclusions to be drawn therefrom are matters within the sole discretion of the trial court. In re Marriage of Foottit, 903 P.2d 1209 (Colo.App.1995).

A.

Husband argues that there cannot be a finding of voluntary underemployment because alternative employment was not available to him. We disagree.

Parents share an obligation to support their children to the best of their abilities, and the court may interpret one parent’s lack of initiative in finding or keeping work as a- voluntary refusal to fulfill a support obligation. In re Marriage of Nordahl, 834 P.2d 838 (Colo.App.1992). The trial court may consider whether alternative employment is available in determining whether a party is voluntarily unemployed or underemployed. See In re Marriage of Campbell, 905 P.2d 19 (Colo.App.1995). Further, § 14-10-115(7)(b)(I) merely requires the court to determine potential income, and imposes no burden on one parent to prove that an available job exists for the other parent.

We reject father’s argument that In re Marriage of Campbell, supra, required wife to prove that a particular job is available. See In re Marriage of Mackey, 940 P.2d 1112 (Colo.App.1997).

Here, in concluding that husband was voluntarily underemployed, the magistrate implicitly determined that husband’s efforts in starting a cattle raising operation were not reasonable. See In re Marriage of Foottit, supra. Further, the magistrate implicitly determined that husband’s testimony concerning his efforts to obtain legal employment was not credible. Finally, although wife did not present evidence of the existence of available jobs, the evidence and reasonable *786 inferences from it support the magistrate’s determination that husband was voluntarily underemployed, and thus, the trial court did not abuse its discretion in affirming the magistrate’s order.

B.

Husband also argues that since his employment as a cattle rancher was' a good faith career choice, was not intended to reduce the support available to his children, and did not unreasonably reduce support, he fits within the exceptions set forth in § 14-10-115(7)(b)(III)(B), C.R.S. (1996 Cum. Supp.). We disagree.

The trial court as a finder of fact can believe all, part, or none of a witness’ testimony, even if it is uncontroverted. In re Marriage of Bowles, 916 P.2d 615 (Colo.App.1995). Therefore, it was within the trial court’s prerogative to determine that husband did not fall within any one of the exceptions of § 14-10-15(7)(b)(III)(B). See In re Marriage of McCord, 910 P.2d 85

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Bluebook (online)
952 P.2d 783, 1997 Colo. App. LEXIS 170, 1997 WL 378198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bregar-coloctapp-1997.