No. 95CA1836Colorado Court of Appeals.
May 1, 1997 Petition for Rehearing DENIED May 29, 1997
Appeal from the District Court of Jefferson County, Honorable Kenneth E. Barnhill, Jr., Judge, No. 91DR2057
ORDERS AFFIRMED IN PART AND CAUSE REMANDED WITH DIRECTIONS
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Marjorie J. Sommer, Denver, Colorado, for Appellee
Polidori, Gerome, Franklin Jacobson, LLC, Peter L. Franklin, Lakewood, Colorado, for Appellant
Division A
Pierce[*] and Tursi[*] , JJ., concur
Opinion by CHIEF JUDGE STERNBERG
[1] In this post-dissolution of marriage proceeding, James William Stress, Jr., (father) appeals from the orders of the trial court modifying his child support obligation, and Renee Cynthia Stress (mother) cross-appeals the trial court’s denial of her request for attorney fees. We remand for further findings on the order modifying child support and affirm the order denying attorney fees. [2] Father’s employer transferred him to Canada. This resulted in father receiving financial compensation in addition to his salary consisting of: (1) a foreign service premium and a commodities and service allowance to offset the cost of living in a foreign locale and (2) the payment by the employer of father’s Canadian income taxes. Both the foreign service premium and the commodities and service allowance were paid directly to father as a portion of his semi-monthly paycheck. The Canadian tax payment, referred to as “expatriate tax equalization” was credited in a lump sum to father’s final paycheck each year, and at the same time deducted for payment of father’s Canadian income taxes. [3] In 1992, in accordance with a prior agreement between the parties, mother requested information from father concerning his income, for a possible modification of child support to commence June 1993. Father did not comply with mother’s request until she brought a contempt action. Thereafter, when the parties were unable to agree upon father’s income for purposes of calculating child support, in 1994, mother filed a motion to modify child support and for an award of costs and attorney fees. Following evidentiary hearings, the court issued orders determining father’s gross income for 1993 and 1994 and modifying his child support obligation accordingly. This resulted in an increase in child support from $1434 per month to $1780 for eleven months and then to $1903 thereafter. However, because the trial court determined that mother had presented no evidence in support of her request for an award of costs and attorney fees, the court denied her motion. I.
[4] Father first contends that the trial court erred in its determination of his gross income. We disagree.
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Cum. Supp.) to the actual gross income of the parents. Gross income, as defined by § 14-10-115(7)(a), C.R.S. (1996 Cum. Supp.), includes income from “any source,” with the limited and specified exclusion of funds received from public assistance or voluntary overtime pay. See In re Marriage of Campbell, 905 P.2d 19 (Colo.App. 1995) (exceptions to sources of income available for payment of child support limited to those enumerated in the statute).
A.
[6] We perceive no basis under the statute upon which the trial court could exclude from father’s gross income the monies paid directly to him to compensate for the cost of living in a foreign locale. Such monies serve the same function as the balance of father’s compensation, that is, to fund his chosen lifestyle and financial obligations in the geographic area in which he resides.
B.
[7] Primarily at issue on appeal is father’s contention that the tax equalization payment is only “phantom income” which is not reasonably available to him for child support payments and, thus, is not properly included in his gross income for child support purposes. We are not persuaded.
(Colo.App. 1995) (the fact that certain items may be deductible on a party’s federal income tax return does not require exclusion from gross income under the child support guideline).
II.
[11] Contrary to father’s assertion, the trial court did not find that he paid no United States income tax. Rather, the trial court found, with record support, that the U.S. income tax paid by father was almost wholly refunded to him as an effect of the foreign tax credit on his U.S. tax liability. This finding is unaffected by the fact that father paid to his Canadian employer a sum based upon his hypothetical U.S. tax liability, which the employer then applied to the payment of his Canadian taxes.
III.
[13] We reject father’s contention that the trial court abused its discretion by declining to deviate from the child support guideline.
(Colo.App. 1984). [15] The child support guideline, § 14-10-115, C.R.S. (1987 Repl. Vol. 6B), establishes a
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rebuttable presumption of the child’s reasonable needs and the manner in which basic and extraordinary support is to be divided between the parents. In re Marriage of Miller, 790 P.2d 890 (Colo.App. 1990). The court may deviate from the guideline if application would be inequitable, unjust, or inappropriate and if such deviation is supported by adequate findings. Section 14-10-115(3)(a), C.R.S. (1996 Cum. Supp.).
[16] The burden is upon the parent contesting the support order to prove that a deviation from the presumptive award is both reasonable and necessary. People in Interest of C.D., 767 P.2d 809(Colo.App. 1988). [17] Father argues that a deviation from the guideline was warranted by evidence that: (1) his income did not increase as a result of his foreign employment; (2) he currently had no greater net income available to meet his children’s needs; and (3) the amount of child support he was required to pay exceeded the total documented needs of his children, thus allowing mother to avoid any financial responsibility toward the children and providing her with a “windfall.” [18] Because we have concluded that the trial court correctly determined father’s income, we reject father’s argument that he did not get a pay increase upon his transfer to Canada. And, because application of the child support guideline is premised upon a determination of gross income, we likewise reject father’s argument that his net income is dispositive. Section 14-10-115
(7)(a), C.R.S. (1996 Cum. Supp.). Further, we note that father’s net income is substantially affected by certain non-cash benefits and expense reimbursements, as well as by various options he has selected which preclude the payment of sums of money directly to him. [19] Father correctly notes that the increased child support he was ordered to pay exceeded the total amount currently expended for the children’s support, as reflected by mother’s financial affidavit. However, a modification of child support based upon substantial and continuing changed financial circumstances, as here, necessarily contemplates that the standard of living of the children may also change. See In re Marriage of Nimmo, 891 P.2d 1002
(Colo. 1995) (children are entitled to enjoy the fruits of one parent’s good fortune after a divorce and are not locked into a single standard of living until emancipation). [20] Finally, the record does not support father’s argument that mother has been relieved of her financial obligation to support her children. Rather, the trial court ordered that mother, like father, pay child support calculated upon her income, pursuant to the child support guideline. [21] Hence, we perceive no abuse of discretion in the trial court’s failure to deviate from the child support guideline.
IV.
[22] Finally, father contends that the trial court erred in ordering that his monthly child support obligation increase from the June 1993 level of $1780 to the June 1994 level of $1903. Specifically, father argues that neither the agreement of the parties nor any findings by the court support this deviation from the statutory guideline. We agree that this ruling must be reconsidered.
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ordering the 1994 increase in child support. Consequently, we must remand the matter to the trial court for further findings setting forth the reasons the trial court deviated from the statutory guideline.
[26] The current order shall remain in effect pending the trial court’s reconsideration and issuance of findings justifying the 1994 increase in child support or, if appropriate, entry of a new order. V.
[27] On cross-appeal, mother contends that the trial court abused its discretion in denying her motion for attorney fees pursuant to § 14-10-119, C.R.S. (1987 Repl. Vol. 6B) or, in the alternative, § 13-17-102, C.R.S. (1987 Repl.Vol. 6A). We do not agree.
A.
[28] Mother’s request for an award of attorney fees pursuant to § 14-10-119 was made in her motion for modification of child support. Therefore, her reliance upon C.R.C.P. 121 § 1-22, which applies to requests for attorney fees made at the conclusion of an action, is misplaced. Further, C.R.C.P. 121 § 1-22 (Comment 2) states that: “[U]nless otherwise ordered by the court, attorney fees under C.R.S. 14-10-119 should be heard at the time of the hearing on the motion or proceeding for which they are requested.”
B.
[31] Implicit in the trial court’s denial of mother’s motion for attorney fees pursuant to § 13-17-102 is its finding that father’s defense of her motion for modification was not frivolous or groundless. Such a determination is one of fact for the trial court, and if, as here, adequately supported by the record, may not be disturbed on appeal. See In re Marriage of Oberg, 900 P.2d 1267 (Colo.App. 1994).