In Re the Marriage of Eze

856 P.2d 75, 17 Brief Times Rptr. 983, 1993 Colo. App. LEXIS 173, 1993 WL 212633
CourtColorado Court of Appeals
DecidedJune 17, 1993
Docket92CA0859
StatusPublished
Cited by8 cases

This text of 856 P.2d 75 (In Re the Marriage of Eze) 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 Eze, 856 P.2d 75, 17 Brief Times Rptr. 983, 1993 Colo. App. LEXIS 173, 1993 WL 212633 (Colo. Ct. App. 1993).

Opinions

Opinion by

Judge DAVIDSON.

Lisa L. Eze (mother) appeals the calculation of child support due from Moses O.J. Eze (father). We affirm.

The parties have two children. During final orders hearings in this dissolution of marriage action, father testified that he also has a child in Iowa, a child in Alabama, and five children in Nigeria. He described his support of the children in Iowa and Nigeria, but his documentary evidence was rejected for lack of foundation. The trial court, however, found that father did have support responsibilities for other children and deducted $1400 from father’s gross income before calculating the support due from him for the parties’ children.

A.Factual Determinations

Mother first contends that the trial court erred in determining that father was responsible for the support of the children in Nigeria. We disagree.

The trial court’s determination of the credibility of witnesses and the sufficiency, probative effect, and weight of the evidence will not be disturbed on review unless the findings are manifestly erroneous. In re Marriage of Hoyt, 742 P.2d 963 (Colo.App.1987).

Here, the finding that father was responsible for other children was supported by his own testimony. We may not reweigh that evidence, nor may we substitute our judgment for that of the trial court as to father’s credibility. Mother’s assertion to the contrary notwithstanding, the trial court is 'free to find the father credible on some issues and not on others. See, e.g., People in Interest of A.J., 757 P.2d 1165 (Colo.App.1988); see also Dresser v. W.H. Mullin Lumber Co., 93 Colo. 271, 25 P.2d 936 (1933) (task of discriminating between credible and incredible testimony belongs exclusively to the trial court).

B.Deduction for Other Support Obligations

Mother next contends that the trial court erred in deducting an amount for father’s other child support obligations from his gross income. We disagree.

The child support guideline provides two methods for recognizing an obligor-parent’s other child support obligations. The first, set out in § 14 —10—115(7)(d), C.R.S. (1987 Repl.Vol. 6B), provides that: “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.” See also § 14-10-115(10)(a)(II), C.R.S. (1992 Cum.Supp.) (“ad[77]*77justed gross income” defined for guideline purposes as “gross income less preexisting child support obligations and less alimony or maintenance actually paid by a parent”).

The second method, set out in § 14-10-115(7)(d.5)(I), C.R.S. (1992 Cum.Supp.), provides:

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 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. 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.

Thus, the deduction for support of other dependents is “computed by deducting the amount of an order for support or, if there is no order, by computing the support from the guideline table.” Colorado Child Support Commission Report 10 (1990).

We do not follow the dicta suggesting otherwise in In re Marriage of Hannum, 796 P.2d 57, 59 (Colo.App.1990), in which the court stated that § 14-10-115(7)(d.5)(I) “provides that the deduction from parental income for obligations to other children must be based on the obligation which the guidelines would yield, rather than on whatever amount was ordered by the court.”

Both of these methods allow deductions for support of “other children,” defined as “children who are not the subject of this particular child support determination.” Section 14-10-115(7)(d). Neither method limits the deduction by birth order, as mother contends, or is ambiguous in that regard. See In re Marriage of Hannum, supra.

1. Deduction under § 14-10-115(7)(d)

A deduction under § 14-10-115(7)(d) depends upon a showing of actual payment under existing child support orders. See People in Interest of C.D., 767 P.2d 809 (Colo.App.1988).

Here, the trial court did not apply that subsection, finding that father had support obligations for his other children, but that there were no orders setting the amount of those obligations. Given the scant and conflicting evidence concerning father’s other child support orders, we cannot say that was error.

2. Deduction under § 14—10—115(7)(d,5)

Further, we do not agree with mother that a deduction under § 14-10-115(7)(d.5) must be limited to an amount “actually paid” or was improper here.

Section 14-10-115(7)(d.5) was intended to recognize an obligor-parent’s support of children not subject to a support order, such as those in a current, intact family. Hearings on H.B. 1180 before the House Judiciary Committee, 57th General Assembly, First Session (January 19,1989); Hearings on H.B. 1180 before the Senate Judiciary Committee, 57th General Assembly, First Session (May 3, 1989). However, § 14-10-115(7)(d.5) requires only that the parent be “legally responsible for the support of other children.” That subsection is unambiguous and makes no reference to actual payment. We may not add such a requirement to the statute. See In re Marriage of Hannum, supra.

Further, we do not read either § 14-10-115(7)(d) or § 14-10-115(10)(a)(II), C.R.S. (1992 Cum.Supp.), both containing the phrase “actually paid,” to impose that requirement on the more specific and later-enacted § 14-10-115(7)(d.5). See §§ 2-4-205, 2-4-206, and 2-4-208, C.R.S. (1980 Repl.Vol. 1B). While those subsections do [78]*78not “contemplate any adjustments to a parent's gross income for court-ordered child support obligations which have not actually been paid by the obligor,” People in Interest of C.D., supra, at 811, the General Assembly has not chosen to so limit § 14-10-115(7)(d.5).

Additionally, the amount calculated and deducted under § 14-10-115(7)(d.5) typically would not be “paid.” Rather, it may be only an approximation of the cost of support provided by a parent or an intact family. See In re Marriage of Pote,

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In Re the Marriage of Eze
856 P.2d 75 (Colorado Court of Appeals, 1993)

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Bluebook (online)
856 P.2d 75, 17 Brief Times Rptr. 983, 1993 Colo. App. LEXIS 173, 1993 WL 212633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-eze-coloctapp-1993.