Parental Resp Conc TNP

• Court: Colorado Court of Appeals
• Decided: March 26, 2026
• Docket: 25CA1197
• Status: Unpublished

Opinion

25CA1197 Parental Resp Conc TNP 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1197 Jefferson County District Court No. 21DR30188 Honorable Christopher B. Rhamey, Judge

In re the Parental Responsibilities Concerning T.N.P., a Child,

and Concerning Calvin Parshad,

Appellee,

and

Victoria Melavic,

Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE MOULTRIE Dunn and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026

No Appearance for Appellee

Byram Law, P.C., Elle Byram, Broomfield, Colorado, for Appellant ¶1 Victoria Melavic (mother) appeals the district court’s

post-decree order modifying Calvin Parshad’s (father) child support

obligation. We affirm in part, reverse in part, and remand the case

for further proceedings.

I. Background

¶2 The parties have a son, T.N.P. (the child), who was born in

July 2020. In March 2021, father filed a petition for an allocation

of parental responsibilities. Eight months later, the district court

adopted the parties’ agreed-upon parenting plan. The agreement

included a step-up plan that increased father’s parenting time as

the child grew older. Consequently, the parties agreed that as

father’s parenting time increased, his child support obligation

would decrease. As a result, starting in July 2022, father’s child

support obligation was $97 per month. Father was also responsible

for maintaining health insurance for the child.

¶3 In May 2023, mother filed a motion to modify child support,

asserting that there had been a substantial and continuing change

in circumstances; specifically, she asserted that her income had

decreased and father’s had increased. She also asserted that the

cost of the child’s health insurance premium was lower than what

1 father claimed. And she argued the parties’ agreement should be

modified to require each party to pay for any work-related child care

during their respective parenting time.

¶4 After several continuances, the district court began the

hearing on mother’s motion in January 2025. However, during

mother’s cross-examination of father, the court became aware of the

fact that father may have provided a forged paystub as evidence of

his income. At that point, the court continued the hearing to allow

mother to subpoena records from father’s employer.

¶5 Four months later, the district court resumed the hearing on

mother’s motion. Then, two years after mother filed her motion to

modify, the court issued a written order increasing father’s ongoing

child support obligation to $615 per month. However, the court

declined to order that modification be retroactive to the date mother

filed the motion to modify.

¶6 Thereafter, mother filed a motion for post-trial relief under

C.R.C.P. 59. The court denied the motion.

II. Legal Framework and Standard of Review

¶7 Children have a legal right to be financially supported by their

parents, and parents have a legal obligation to provide reasonable

2 child support. In re Marriage of Gallo, 2024 COA 86, ¶ 15. Section

14-10-115, C.R.S. 2025, provides Colorado’s child support

guidelines and the schedule of basic child support obligations,

which assist the court in calculating child support based on the

parents’ combined adjusted gross income and the child’s physical

care arrangements. See § 14-10-115(1)(b). In other words, the

child support guidelines ensure that parents equitably contribute to

a child’s expenses. Gallo, ¶ 15.

¶8 Section 14-10-122(1), C.R.S. 2025, vests the district court

with the sole authority to modify child support orders. Gallo, ¶ 15.

A child support decree may be modified “upon a showing of

changed circumstances that are substantial and continuing.”

§ 14-10-122(1)(a); Gallo, ¶ 16.

¶9 In general, we review child support orders for an abuse of

discretion. In re Marriage of Boettcher, 2019 CO 81, ¶ 12. However,

we review de novo whether the district court applied the correct

legal standard when crafting the order. Id. Further, we review

factual findings as to income for clear error and won’t disturb them

unless they aren’t supported by the record. See In re Marriage of

Atencio, 47 P.3d 718, 720 (Colo. App. 2002); see also In re Marriage

3 of Collins, 2023 COA 116M, ¶ 30 (the district court has broad

discretion in determining income, and we won’t disturb the court’s

income findings when they are supported by the record).

III. Ongoing Child Support Obligation

¶ 10 Mother contends that the district court abused its discretion

in two ways when it calculated father’s ongoing child support

obligation. First, she argues that the court “disregarded evidence

and misapplied the law” when it calculated her income. Second,

she argues that the court erroneously credited father for child care

costs “even though there was no evidence” that father would

continue to pay for child care when the child started kindergarten

“a few months after the hearing.” We aren’t persuaded.

A. Mother’s Income

1. Applicable Law

¶ 11 To calculate child support, the district court must use a

parent’s actual gross income unless it determines that the parent is

voluntarily underemployed, meaning the parent is shirking their

child support obligation by unreasonably forgoing higher paying

employment that they could obtain. People v. Martinez, 70 P.3d

474, 479-80 (Colo. 2003). A parent’s actual gross income “includes

4 income from any source, except as otherwise provided in subsection

(5)(a)(II)” of section 14-10-115. § 14-10-115(5)(a)(I); In re Marriage of

Tooker, 2019 COA 83, ¶ 13.

¶ 12 However, if the district court finds that a parent is voluntarily

underemployed, then the court calculates child support based on

that parent’s potential income. § 14-10-115(5)(b)(I); Martinez, 70

P.3d at 477. Potential income is the income a party could earn

from a full-time job commensurate with their demonstrated earning

ability. Tooker, ¶ 26.

2. Analysis

¶ 13 Mother argues that the district court erred by imputing her

income after finding that she wasn’t voluntarily underemployed.

We disagree because, despite the court’s use of the word “impute,”

the record shows that it used mother’s actual income, not her

potential income, for purposes of calculating child support.

¶ 14 We acknowledge that the district court’s findings about

mother’s income, at first glance, are confusing. The court first

found that mother’s decision to quit her nursing job and become a

nanny was “a good faith occupational change.” In other words, it

found that mother wasn’t voluntarily underemployed. But then it

5 found, based on one of father’s exhibits, that mother’s “appropriate”

potential yearly income as a nurse would be $89,500. And then it

stated that, instead of using mother’s potential yearly income of

$89,500, it would “impute” her income at $85,899.

¶ 15 Nonetheless, it is clear that the district court’s income finding

of $85,899 was based on its calculation of mother’s actual income

as a nanny, not her potential income as a nurse. As the court

explained in detail, it used mother’s bank account statements from

the fifteen months leading up to the hearing — a timeframe in

which mother only worked as a nanny — to calculate her income.

Specifically, the court combined the average amount of money

deposited into mother’s account with the average amount of money

mother received from her investment accounts every month. It

determined that the sum of those averages — deposits plus

investment income — accurately represented mother’s income.

¶ 16 Importantly, mother’s testimony indicated that her nanny

income fluctuates; she testified that she earns income both from

nannying some children on a regular basis but also from nannying

some children on a “drop-in” basis. When a parent’s income

substantially fluctuates, a district court may, as it did here,

6 calculate an average of past earnings to determine a parent’s

income. See In re Marriage of Salby, 126 P.3d 291, 299 (Colo. App.

2005). And doing so doesn’t imply a finding of underemployment or

mean that the court based its determination on the parent’s

potential income. Cf. In re Marriage of Rice, 987 P.2d 947, 949-50

(Colo. App. 1999) (noting, without discussing income imputation or

voluntary underemployment, the court’s discretion to determine

income by averaging past earnings). Thus, we disagree with

mother’s assertion that the court imputed her income.

¶ 17 Moreover, we conclude that the district court’s income

determination was supported by the record. Mother’s bank account

statements were admitted as exhibits during the hearing. Mother

testified that all of her nanny clients paid her “[d]irectly from their

bank accounts through Zelle to [her] bank account.” She further

testified that all of the deposits shown in her bank account

statements were “from work” except for the child support payments.

See § 14-10-1155(a)(II)(A) (excluding child support payments

received from the definition of “gross income”). And she testified

that her income included the withdrawals from her investment

accounts.

7 ¶ 18 Last, we reject mother’s argument that the district court

“disregarded evidence” in calculating her income. True, mother

testified that her income was lower than what the court calculated.

But the court didn’t find that her testimony was credible. And we

can’t reweigh the evidence or disturb the court’s findings when, as

here, they have record support and are based on credibility

determinations. See In re Marriage of Nelson, 2012 COA 205, ¶ 35

(“[Even when] there is evidence in the record that could have

supported a different conclusion, we will not substitute our

judgment for that of the district court.”); see also In re Marriage of

Hatton, 160 P.3d 326, 330 (Colo. App. 2007) (“It is the responsibility

of the trial court as the trier of fact to determine the credibility of

the witnesses and the sufficiency, probative effect, and weight of the

evidence.”).

¶ 19 Based on the foregoing, we discern no error in the court’s

determination of mother’s income.

B. Allocation of Child Care Costs

¶ 20 Work-related child care costs are generally divided between

the parents in proportion to their incomes. § 14-10-115(9)(a); In

8 Interest of A.M.D., 56 P.3d 1184, 1189 (Colo. App. 2002), rev’d on

other grounds, 78 P.3d 741 (Colo. 2003). The child support

guidelines establish a rebuttable presumption that child care costs

are added to the basic child support obligation. In re Marriage of

Finer, 920 P.2d 325, 329 (Colo. App. 1996). A district court may

only consider child care expenses that are actually incurred. In re

Marriage of Connerton, 260 P.3d 62, 67 (Colo. App. 2010).

¶ 21 Mother contends that the district court erred when it credited

father $1,093 per month for work-related child care costs. She

asserts that father failed to prove that he would continue to pay for

child care after the child started kindergarten and that there was

“no evidence” to support the court’s allocation of child care costs.

We disagree.

¶ 22 At the hearing, father testified that he paid “a little over

$1,000” per month for the child’s early childhood education

program. He also testified that he anticipated paying the same

amount for child care for “at least another four or five years”

because the program could accommodate children through the fifth

grade and father planned to continue to send the child there.

9 Moreover, the district court admitted and relied on an exhibit that

included invoices from the child’s early education program.

Although the court noted that there were “inconsistencies in the

amounts billed,” it found, based on father’s testimony and the most

recent invoice, that father’s “current” child care cost was $1,093 per

month. And, while mother argued that the child care costs should

be “dropped” from the child support calculation because the child

was about to start kindergarten, she didn’t present any evidence

contradicting father’s evidence of his current child care costs, nor

did she present any evidence showing that kindergarten would be

free. See In re Marriage of Zappanti, 80 P.3d 889, 892 (Colo. App.

2003) (a party who fails to present sufficient evidence at trial should

not be allowed on appeal to challenge the inadequacy of the

evidence).

¶ 23 We acknowledge that the district court found that father

lacked credibility “in light of his document alteration [and] his

willingness to present false testimony.” Even so, it was within the

court’s discretion to rely on the parts of father’s testimony and

evidence that it found to be credible. See Hatton, 160 P.3d at 330.

Again, we can’t reweigh the evidence or disturb the court’s findings

10 when, as here, they have record support and are based on

credibility determinations. See id.; Nelson, ¶ 35.

¶ 24 Based on the foregoing, we conclude that the district court

didn’t err in its allocation of child care costs. Thus, we discern no

reason to reverse the court’s calculation of father’s ongoing child

support obligation of $615 per month.

IV. Retroactive Modification of Child Support

¶ 25 Mother also contends that the district court abused its

discretion by declining to order that child support be modified

retroactively to May 2023 — the date that mother filed the motion to

modify child support. She argues that the court misapplied the

“undue hardship and substantial injustice standard” and

disregarded the evidence showing the parties’ past incomes. We

agree.

A. Applicable Law

¶ 26 A child support modification “should be effective as of the date

of the filing of the motion, unless the court finds that it would cause

undue hardship or substantial injustice.” § 14-10-122(1)(d);

Nelson, ¶ 40. Undue hardship or substantial injustice isn’t created

merely by retroactively enforcing a properly calculated child support

11 obligation even if a parent is financially inconvenienced by the

order. In re Marriage of Armit, 878 P.2d 101, 103 (Colo. App. 1994).

¶ 27 The analysis of whether retroactive modification will cause

undue hardship or substantial injustice is fact intensive and

typically involves an evaluation of the obligor’s financial

circumstances. See e.g., Nelson, ¶ 41 (the record didn’t show

undue hardship because husband’s income had increased such

that he was able to pay the retroactive maintenance); Armit, 878

P.2d at 102-03 (in determining that the court erred by denying

retroactive modification of child support, the division focused on

whether the obligor had unusual or unique financial circumstances

that hindered his ability to pay).

B. Analysis

¶ 28 At the beginning of the hearing, mother clarified that she

wanted the order modifying child support to be retroactive to the

date she filed the motion to modify. In response, the district court

stated that ordering modification retroactive to the date of filing

“gets real messy” and is “potentially very complicated.” The court

went on to state that it was “inclined to figure out what [child

support] needs to be now [and] . . . make an order moving forward.”

12 Then, in its order modifying child support, the court found the

following:

The Court was provided with scant information to determine proper child support, dating back to the Motion for Modification on May 17, 2023. Although the Court was able to determine income by reviewing documentation dating back to January of 2024, the Court is devoid of sufficient evidence of income in 2023, and the Court is unable to ascertain the appropriate childcare deductions based on the information provided. Further, applying retroactive payment will certainly lead to communication between Parties who have demonstrated an inability to resolve basic issues. The Court finds retroactive modification will create undue hardship and substantial injustice.

¶ 29 We conclude that the district court erred by denying

retroactive modification for three reasons.1

1 Mother also argues that the delay between the filing of the motion

to modify child support and the hearing is insufficient to demonstrate that father would be unduly burdened by retroactive child support. True, undue hardship isn’t created simply because time has passed due to a court’s docketing delays. See In re Marriage of Armit, 878 P.2d 101, 103 (Colo. App. 1994). But we need not address this argument because the court didn’t cite docketing delays or the amount of time that had passed between the filing of the motion and the hearing as a basis for denying retroactive support.

13 ¶ 30 First, the record belies the district court’s finding that the

evidence was too “scant” to determine the parties’ 2023 incomes.

As mother points out, father’s W-2 form, which was admitted into

evidence, showed his total earnings for 2023. The court also took

judicial notice of mother’s sworn financial statement from October

2023 in which mother estimated her income and expenses at that

time. Indeed, the court determined mother’s monthly income

throughout 2023 for purposes of calculating the parties’ current

child support obligation. Moreover, it was clear from mother’s

proposed child support worksheets, which were admitted as

demonstrative exhibits, that mother was willing to use her current

income for purposes of calculating retroactive child support even

though it was arguably higher than what she earned in 2023. And

to the extent that the court found that it didn’t have enough

information to calculate father’s past child care costs, it wasn’t

required to credit father for costs he didn’t prove he incurred. See

Connerton, 260 P.3d at 67 (Colo. App. 2010).

¶ 31 Second, it is unclear how modifying child support to the date

mother filed the motion would lead to more communication between

the parties, and the court didn’t explain how it would. And even if

14 it would lead to more communication, the court didn’t explain how

requiring the parents to communicate would cause undue hardship

or a substantial injustice.

¶ 32 Third, father didn’t argue, nor does the record show, that

applying the statute would cause undue hardship or substantial

injustice. In fact, at the hearing, father’s counsel stated that “we’re

okay with the support being retroactive [to] the date of filing or

moving forward.” And the evidence showed that father’s income

increased between the date of filing and the date of the court’s order

modifying child support. Cf. Nelson, ¶ 41 (upholding maintenance

modification as of date of motion to modify when, although the

court made no finding concerning hardship, the husband’s income

had increased such that he was able to pay the retroactive

maintenance).

¶ 33 Based on the foregoing, we conclude that the district court

abused its discretion by denying mother’s request for retroactive

modification to the date she filed the motion to modify. And

because the hearing on mother’s motion to modify was delayed for

two years, the error deprived the child of a substantial amount of

child support. See Gallo, ¶ 15 (“Child support rights belong

15 exclusively to a child.”). Thus, the error wasn’t harmless. See

C.A.R. 35(c); C.R.C.P. 61; see also In re Parental Responsibilities

Concerning E.E.L-T., 2024 COA 12, ¶ 30 (we reverse if an error

resulted in substantial prejudice to a party).

V. Disposition

¶ 34 We reverse the portion of the district court’s order that denied

mother’s request for retroactive modification of child support. We

remand the case for the court to calculate and enter a modified

child support order for the timeframe between mother’s filing of the

motion to modify and the date the court entered its order modifying

child support. We otherwise affirm the court’s order.

JUDGE DUNN and JUDGE HARRIS concur.