of Alvis

2019 COA 97, 446 P.3d 963

• Court: Colorado Court of Appeals
• Decided: June 27, 2019
• Docket: 18CA0251, Marriage
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY June 27, 2019

2019COA97

No. 18CA0251, Marriage of Alvis — Family Law — Post- Dissolution — Child Support — Adjustments for Health Care Expenditures for Children — Extraordinary Medical Expenses

In this post-dissolution of marriage case where the parties

share parenting time equally, a division of the court of appeals

concludes that the first $250 of uninsured medical expenses is part

of the shared basic child support obligation and therefore neither

party may request reimbursement from the other for that expense.

The division rejects father’s argument that because he pays a larger

share of the basic child support obligation, mother should pay the

entire $250 expense. Rather, the division holds that, because the

$250 expense is part of the shared basic child support obligation,

each parent must pay uninsured medical expenses incurred during

his or her parenting time, until the total for each child reaches $250, at which time the parents may seek reimbursement in

proportion to their adjusted gross incomes. Accordingly, the

division affirms the district court’s order. COLORADO COURT OF APPEALS 2019COA97

Court of Appeals No. 18CA0251 El Paso County District Court No. 11DR2085 Honorable Deborah J. Grohs, Judge

In re the Marriage of

Michelle Lea Alvis,

Appellee,

and

Norman Foster Darrell Alvis,

Appellant.

ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS

Division V Opinion by JUDGE HARRIS Richman and Tow, JJ., concur

Announced June 27, 2019

Weeks & Luchetta, LLP, Alexander M. Masterson, Colorado Springs, Colorado, for Appellee

Law Office of Greg Quimby, P.C., Greg Quimby, Erica Vasconcellos, Cody Christian, Colorado Springs, Colorado, for Appellant ¶1 In this post-dissolution of marriage proceeding involving

Michelle Lea Alvis (mother) and Norman Foster Darrell Alvis (father),

father appeals the district court’s order concluding that under

section 14-10-115(10)(h)(I) and (II), C.R.S. 2018, neither parent can

request reimbursement from the other parent for uninsured

medical expenses for amounts less than $250 per child per year.

¶2 To resolve father’s appeal, we must address an issue that has

not been decided in Colorado — who bears responsibility for the

first $250 of uninsured medical expenses per child per year when

the parents share parenting time equally. Because we decide that

those expenses are accounted for in the parents’ shared basic child

support obligation, we affirm. We also remand the case for

determination of mother’s appellate attorney fees request under

section 14-10-119, C.R.S. 2018.

I. Background

¶3 The parties’ marriage was dissolved in March 2012. The court

found that equal parenting time for the parties’ three children was

in the children’s best interests and declined to designate a primary

residential parent. Based on the child support schedule, the court

ordered father to pay mother $453 per month in child support.

1 ¶4 In November 2017, father moved for an order requiring mother

to pay the first $250 of uninsured medical expenses per child per

year. In its order, the court “reminded [the parties] that [mother] is

responsible for the first $250 of uninsured medical expenses per

child per year.”

¶5 Mother then moved for relief under C.R.C.P. 59(a), contending

that the district court had discretion to allocate to either parent the

first $250 of uninsured medical expenses per child per year. She

asked the court to allocate the expenses in proportion to the parties’

incomes. Father reiterated his view that they were mother’s

responsibility because she was receiving child support.

¶6 The court disagreed with both parties and interpreted section

14-10-115(10)(h)(I) and (II) “to mean that neither party can request

reimbursement of uninsured medical expenses from another party

for amounts less than $250 per child per year.”

II. Uninsured Medical Expenses

¶7 Father contends that the district court erred in ruling that

neither parent can request reimbursement from the other parent for

the first $250 of uninsured medical expenses per child per year. He

2 contends that mother, because she receives child support, should

bear those expenses. We disagree.

A. Standard of Review

¶8 Interpretation of the child support statutes is a question of law

that we review de novo. In re Marriage of Paige, 2012 COA 83, ¶ 9.

When we interpret a statute, we must ascertain and give effect to

the legislature’s intent. In re Marriage of Joel, 2012 COA 128, ¶ 18.

“We look first to the plain language of the statute, and if that

language is clear and unambiguous on its face, we apply the statute

as written.” Paige, ¶ 9 (quoting In re Marriage of Schmedeman, 190

P.3d 788, 790 (Colo. App. 2008)).

¶9 But if the plain language is ambiguous or if the statute is

silent on an issue that would be expected to be within its scope, we

enlist tools of statutory interpretation to discern the legislature’s

intent. People v. Ray, 2018 COA 158, ¶ 16. Those tools include

legislative history, prior law, the consequences of a particular

construction, and the goal of the statutory scheme. In re Marriage

of Ikeler, 161 P.3d 663, 668 (Colo. 2007). We must interpret the

statute “to give consistent, harmonious, and sensible effect to all its

parts.” Id. at 667.

3 B. Legal Standards

¶ 10 Parents share an obligation to support their children to the

best of their abilities. People v. Martinez, 70 P.3d 474, 477 (Colo.

2003); In re Marriage of Bregar, 952 P.2d 783, 785 (Colo. App.

1997).

¶ 11 Accordingly, the child support statute provides for a shared

basic child support obligation, plus adjustments for “extraordinary”

expenses.

¶ 12 The basic child support obligation is determined by applying

the schedule in section 14-10-115(7)(b) to the parents’ combined

gross incomes, which yields a presumptive amount necessary to

cover the child’s basic needs. § 14-10-115(7)(a)(I); In re Marriage of

Davis, 252 P.3d 530, 534 (Colo. App. 2011). The basic obligation is

then divided between the parents in proportion to their incomes.

§ 14-10-115(7)(a)(I). This shared obligation is supposed to provide

for the child’s basic needs — things like food, shelter, and clothing.

See In re Marriage of White, 240 P.3d 534, 540 (Colo. App. 2010)

(the noncustodial parent may be obligated to make child support

payments to the custodial parent so that the custodial parent can

provide the child with food, shelter, and other necessities),

4 superseded by statute on other grounds, Ch. 103, sec. 3, § 14-10-

122(5), 2013 Colo. Sess. Laws 354, as recognized in In re Marriage

of Garrett, 2018 COA 154, ¶ 31.

¶ 13 But children frequently have needs that fall outside the bare

necessities covered by the basic child support obligation. Thus, the

child support statute also contemplates “extraordinary” expenses.

Extraordinary expenses can be predictable and recurring, like the

cost of contact lenses or physical therapy for a long standing injury,

or they can be unexpected, like the cost of repairing a broken tooth.

Predictable and recurring extraordinary expenses are usually added

to the basic child support obligation, allocated in proportion to the

parties’ incomes, and become part of the monthly child support

order. See, e.g., § 14-10-115(9)(a) (child care costs); § 14-10-

115(10)(b) (health insurance premiums). Because the monthly

support order already accounts for these extraordinary expenses,

neither parent may separately seek reimbursement for them.

¶ 14 The unexpected extraordinary expenses, on the other hand,

cannot be accounted for in the monthly support order. So when a

child breaks her tooth on a trampoline or needs a few sessions of

grief counseling after a grandparent dies, those expenses are paid

5 as they arise, and the parent who pays them may then seek

reimbursement from the other parent for that parent’s proportional

share.

¶ 15 This appeal involves the statutory provision that addresses

extraordinary medical expenses. Section 14-10-115(10)(h) provides

in relevant part as follows:

(h)(I) Any extraordinary medical expenses incurred on behalf of the children shall be added to the basic child support obligation and shall be divided between the parents in proportion to their adjusted gross incomes.

(II) Extraordinary medical expenses are uninsured expenses, including copayments and deductible amounts, in excess of two hundred fifty dollars per child per calendar year. Extraordinary medical expenses include, but need not be limited to, such reasonable costs as are reasonably necessary for orthodontia, dental treatment, asthma treatments, physical therapy, vision care, and any uninsured chronic health problem.

C. The District Court’s Order

¶ 16 As a threshold matter, we disagree with the parties’

interpretation of the district court’s order. The district court

interpreted section 14-10-115(10)(h)(I) and (II) “to mean that neither

6 party can request reimbursement of uninsured medical expenses

from another party for amounts less than $250 per child per year.”

¶ 17 Both parties interpreted the order to mean that each parent

must pay $250 per child per year, for a total of $500 per child per

year, before seeking reimbursement from the other parent. The

district court, however, did not say that each parent is separately

responsible for $250 of uninsured medical expenses per child per

year. Rather, the court ruled that the parents cannot seek

reimbursement for uninsured medical expenses until a total of

$250 is spent on a child in a single year.

D. First $250 of Uninsured Medical Expenses Per Child Per Year

¶ 18 With that threshold issue resolved, we turn to the merits of

father’s contention that mother is responsible for the first $250 of

uninsured medical expenses per child per year because she receives

child support from him. We are not persuaded.

¶ 19 By its plain language, section 14-10-115(10)(h)(II) specifically

excludes from the definition of extraordinary medical expenses the

first $250 of uninsured medical expenses per child per year. In

light of the statutory scheme, if the $250 is not an extraordinary

expense, it must be part of the basic child support obligation. See

7 BP Am. Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008) (“[A]

provision existing as part of a comprehensive statutory scheme

must be understood, when possible, to harmonize the whole.”).

¶ 20 The legislative history supports our reading. When the

legislature last modified the definition of extraordinary medical

expenses, the bill’s sponsor indicated that the basic child support

schedule assumes that each child will incur $250 per year in

uninsured medical expenses. Hearings on S.B. 02-21 before the S.

Judiciary Comm., 63rd Gen. Assemb., 1st Sess. (Feb. 5, 2002)

(statement of Sen. Peggy Reeves).

¶ 21 Thus, we conclude that the first $250 of uninsured medical

expenses per child per year is included in the shared basic child

support obligation.

¶ 22 Father agrees that uninsured medical expenses of less than

$250 constitute a “basic need” covered by the basic child support

obligation. But he says that, because the expense is part of the

basic child support obligation, the parent who receives child

support is obligated to pay it.

¶ 23 That argument is inconsistent with the fundamental premise

of a shared basic child support obligation. Under the statutory

8 scheme, both parents contribute, according to their abilities, an

amount necessary to cover the children’s ordinary living expenses.

When the parents share physical care of the children, as they do in

this case, each parent’s share of the support obligation is

calculated, and “[t]he parent owing the greater amount of child

support shall owe the difference between the two amounts . . . .” §

14-10-115(8)(b). Then, during his or her parenting time, each

parent is expected to cover the children’s expenses accounted for in

the monthly support order. See id. (recognizing that when parents

have shared physical care of the children, certain basic expenses

will be duplicated).

¶ 24 In this case, the parties’ combined monthly income of

approximately $10,000 yielded a presumptive amount of basic child

support of $3000 for the three children, of which father was

responsible for roughly seventy percent ($2023) and mother for

thirty percent ($987). Mother and father share parenting time just

about equally, so each parent owes about fifty percent of his or her

share to the other parent: mother owes father $492 and father owes

mother $1014. After an adjustment for paying health insurance for

the children, father’s share owed to mother is reduced to $945.

9 Thus, after offsetting mother’s share, father pays mother $453. In

this way, each parent can cover the monthly expenses of the

children when he or she has physical care of them.

¶ 25 According to father, the first $250 of uninsured medical

expenses should be paid from the amount he sends to mother. But

why would that particular expense, which is accounted for (like all

basic necessities) in the monthly child support order, fall entirely to

mother? If, during his parenting time, father takes the children out

to eat or to the mall to buy shoes, is mother obligated to pay those

expenses, too, out of the $453 child support payment? Under

father’s reasoning, mother should be responsible for all of the

children’s ordinary living expenses merely because she receives an

offsetting child support payment from him. We reject that

interpretation of the statutory scheme as absurd. See State v.

Nieto, 993 P.2d 493, 501 (Colo. 2000) (in construing a statute, court

must seek to avoid an interpretation that leads to an absurd result).

¶ 26 Imagine if, instead of offsetting mother’s share of the child

support obligation, each parent sent the other his or her share. The

net result would be the same, but mother’s contribution would be

more obvious. And the flaw in father’s logic would be as well.

10 Father is no more entitled to a reimbursement for his expenditures

for the children’s basic needs than mother is for hers.

¶ 27 Expenses covered by the basic support obligation have already

been accounted for and divided between the parents in proportion

to their incomes and therefore are not reimbursable. Thus, each

parent must pay uninsured medical expenses incurred during his

or her parenting time, until the total for each child reaches $250, at

which time the parents may seek reimbursement in proportion to

their adjusted gross incomes. See § 14-10-115(10)(h)(I)-(II).

¶ 28 We are not persuaded otherwise by In re Marriage of Marson,

929 P.2d 51, 52-53 (Colo. App. 1996) (construing prior version of

statute which defined extraordinary medical expenses as those in

excess of $100 for a single illness or condition), and In re Marriage

of Finer, 920 P.2d 325, 330 (Colo. App. 1996) (same). In those

cases, divisions of this court assumed that the “custodial” parent

was obliged to pay the excluded amount of uninsured medical

expenses. But the question of how to characterize and allocate this

expense was not squarely before either division. In any event, we

do not view those cases as necessarily inconsistent with our

conclusion. It makes sense for a “custodial” parent (in modern-day

11 parlance, the parent who has exclusive or near-exclusive physical

care of the child) to be responsible for paying the child’s ordinary

living expenses (with the financial assistance of the other parent).

Here, though, neither mother nor father qualifies as the “custodial”

parent, and thus the reasoning of Marson and Finer does not apply.

¶ 29 We therefore affirm the district court’s order that neither

parent can seek reimbursement for uninsured medical expenses of

less than $250 per child per year.1

III. Mother’s Request for Appellate Attorney Fees

¶ 30 Mother requests her appellate attorney fees under section 14-

10-119, based on the parties’ unequal financial circumstances.

Because the district court is better equipped to resolve the factual

issues regarding the parties’ current financial circumstances, we

remand mother’s request to the district court. See In re Marriage of

Kann, 2017 COA 94, ¶ 84.

IV. Conclusion

1 We recognize that the basic child support calculation assumes that each parent will incur some portion of the $250 of uninsured medical expenses for each child. If the district court finds that one parent is more likely to incur all of those expenses, we do not mean to preclude the court from deviating from the basic support obligation to reflect and remedy that inequity. See § 14-10- 115(8)(e), C.R.S. 2018. 12 ¶ 31 The district court’s order is affirmed, and the case is remanded

for determination of mother’s appellate attorney fees request under

section 14-10-119.

JUDGE RICHMAN and JUDGE TOW concur.