In re the Marriage of Tognoni

313 P.3d 655, 2011 WL 5436480, 2011 Colo. App. LEXIS 1819
CourtColorado Court of Appeals
DecidedNovember 10, 2011
DocketNo. 10CA1138
StatusPublished
Cited by21 cases

This text of 313 P.3d 655 (In re the Marriage of Tognoni) 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 Tognoni, 313 P.3d 655, 2011 WL 5436480, 2011 Colo. App. LEXIS 1819 (Colo. Ct. App. 2011).

Opinion

Opinion by

Judge HAWTHORNE.

In this post-dissolution of marriage matter between David Q. Tognoni (husband) and Patricia A. Tognoni (wife), husband appeals the judgment awarding wife child support arrearages, interest, and attorney fees. Wife cross-appeals the attorney fees amount. We affirm the arrearages and interest judgment, vacate the attorney fees award, and remand for further proceedings.

I. Noncompliance with Appellate Rules

Initially, we note that husband's opening brief and wife's opening-answer brief fail to comply with C.A.R. 32(f)'s certificate of compliance requirement, and are therefore subject to being stricken. See C.A.R. 38(e). We admonish both parties to comply with these rules. They are not mere technicalities, but facilitate our appellate review. See O'Quinn v. Baca, 250 P.38d 629, 681 (Colo.App.2010).

II. Factual and Procedural History

In 1995, the trial court entered judgment against husband for $58,814.31 in unpaid child support and interest under the parties' dissolution decree. Husband did not seek post-judgment relief, nor did he appeal. He did, however, twice move to modify child support, first in 1997 and again in 1998, contending that his income had changed significantly and that he was unable to pay the amount ordered. In 1998, the trial court modified child support and ordered that future payments be credited first toward husband's current obligation, then to any arrear-ages under the modified order, and then to his past arrearages (the 1998 order). Husband did not appeal this order.

In 2009, wife requested that judgment enter for $99,831.05 in child support arrearag-es, for $210,092.24 in interest, and for her attorney fees. The trial court entered judgment for the arrearages and interest but denied attorney fees. Thereafter, the court accepted the parties' stipulation to vacate the judgment and ordered them to submit their arrearages and interest calculations.

Wife claimed that $399,414.24 was owed and moved for summary judgment according ly. Husband objected and submitted his own calculations, which indicated $399,400 was owed if a 12% interest rate, compounded monthly, was applied pursuant to section 14-14-106, C.R.S.2011, but that $198,868 was owed applying an 8% rate compounded annually. Husband requested a hearing on the issue. In reply, wife requested attorney fees under section 13-17-102(4), C.R.S.2011, contending that husband's position lacked substantial justification. Without conducting a hearing, the trial court entered judgment against husband for $399,400, and awarded wife one half her attorney fees. After the court denied husband relief under C.R.C.P. 59, husband appealed and wife cross-appealed.

TIL Summary Judgment

Husband first contends that the trial court erred by entering summary judgment on the arrearages and interest amount. We disagree.

[658]*658An appellate court reviews the trial court's order granting summary judgment de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo.2008). Summary judgment is appropriate when there are no genuine material factual issues and the moving party is legally entitled to judgment. See C.RC.P. 56(c); Georg, 178 P.8d at 1212. Summary judgment is a drastic remedy, however, and should be granted only when these requirements are clearly met. Avi-Comm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023, 1029 (Colo.1998).

A. Arrearages Amount

The arrearages amounts determined by the parties differed by $14.24, assuming a 12% interest rate compounded monthly as provided under section 14-14-106. The trial court used husband's expert's calculation in entering judgment. Thus, we reject husband's contention that there were material disputed factual issues concerning the ar-rearages amount.

Husband argues that a disputed factual issue existed because, in response to wife's motion for summary judgment, he asserted that he had paid off the principal of his child support debt to the county Child Support Enforeement Unit (CSETU) in 2009. However, he did not contend that his expert's calculated amount failed to account for this payment. Nor did he argue that his expert's arrearages calculation was incorrect. Thus, the record does not support husband's argument that his principal payment to the CSEU was a material fact preventing the court from entering summary judgment. To the extent husband contends for the first time on appeal that his expert's calculations were incorrect, either because the principal payment was not taken into account or because an incorrect emancipation date for his youngest child was used, we do not address these contentions. See In re Marriage of Atencio, 47 P.3d 718, 722 (Colo.App.2002) (appellate court does not address contentions raised for the first time on appeal).

We also reject, for two reasons, husband's contention that the trial court applied his payments incorrectly by not reducing his oldest debt first, as required by Weston Group, Inc. v. A.B. Hirschfeld Press, Inc., 845 P.2d 1162, 1166 (Colo.1998). First, husband's own calculations in his response to wife's motion for summary judgment applied his payments in this fashion, and he may not raise on appeal an error which he himself invited. See Horton v. Suthers, 48 P.8d 611, 618 (Colo.2002).

Second, husband did not timely appeal the 1998 order, which established the method for applying child support payments. A notice of appeal must be filed within forty-five days after the trial court enters a final order. C.AR. 4(a). "The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review." In re Marriage of Buck, 60 P.3d 788, 789 (Colo.App.2002). Thus, we do not address the arrearages payment schedule established in the 1998 order. See In re Marriage of Warner, 719 P.2d 363, 364-65 (Colo.App.1986) (trial court did not abuse discretion by refusing to vacate writ of garnishment based on party's arguments attacking the underlying arrearages judgment, from which party did not timely seek relief).

Further, we reject husband's conten'tion that the court should have held a hearing on his factual allegations that he missed child support payments only because he had difficulty keeping a job between 1995 and 2004 and was thus unable to pay. The record reflects that husband made similar allegations in his 1997 and 1998 motions to modify child support and, as previously noted, the court modified child support in its 1998 order. Husband did not appeal from that order. Accordingly, the trial court did not err by refusing to revisit the appropriate child support amount for these previous years.

We are not persuaded otherwise by husband's contention, citing In re Marriage of Jacobs, 859 P.2d 914 (Colo.App.1993), and In re Marriage of Denmin, 811 P.2d 449

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Cite This Page — Counsel Stack

Bluebook (online)
313 P.3d 655, 2011 WL 5436480, 2011 Colo. App. LEXIS 1819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-tognoni-coloctapp-2011.