No. 93CA2082Colorado Court of Appeals.
Decided September 22, 1994 Petition for Rehearing DENIED November 17, 1994. Petition for Writ of Certiorari DENIED June 19, 1995
Appeal from the District Court of Routt County Honorable Rebecca L. Kourlis, Judge No. 90DR19
ORDERS AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
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No Appearance for Appellee
Marcia Minuck, Denver, Colorado, for Appellant
Division II
Marquez and Taubman, JJ., concur
Opinion by JUDGE CRISWELL
[1] Roger Trout (husband) appeals from post-decree orders with respect to maintenance,Page 840
child support, and attorney fees that were awarded to Carol Trout (wife). We affirm in part, reverse in part, and remand with directions.
I.
[2] Husband first contends that the trial court erred in denying his motion to modify maintenance because the record showed that wife’s income had increased since the date of decree, while his income had decreased and his debt obligations remained the same. We are not persuaded.
II.
[6] Husband next asserts that the trial court’s award of attorneys fees to wife is not supported by the required findings and that the record is devoid of any evidence that the amount awarded was reasonable. We agree that the award must be reconsidered.
(Colo.App. 1984). [9] Here, the award of attorney fees was apparently based entirely upon the conclusion that husband’s motion to modify maintenance was denied. This was an impermissible basis, alone, upon which to award attorney fees. [10] Further, although the record contains copies of the billings that wife received from her attorney, which were admitted without objection and which the court presumably considered before entering its latter order, the court made no specific findings showing how it arrived at the amount ordered. Nor was the reasonableness of the fees awarded established. [11] Accordingly, the award of attorney fees in neither order can stand, and the matter must be remanded for reconsideration and for further findings to support any specific award that is made. See In re Marriage of Sarvis, 695 P.2d 772 (Colo.App. 1984). The court may allow the further presentation of evidence upon this subject if it determines it is appropriate to do so.
III.
[12] Husband also contends that the trial court abused its discretion in directing the parties to divide the federal tax exemptions without hearing any evidence or making appropriate findings on that issue. We agree.
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[13] The provisions of any decree respecting the award of an income tax exemption may be modified upon a showing of changed circumstances that are substantial and continuing. Section 14-10-122(1)(a), C.R.S. (1994 Cum. Supp.). See In re Marriage of Ford, 851 P.2d 295 (Colo.App. 1993). The award of such exemption is intimately related to the issue of child support. In re Marriage of Nielsen, 794 P.2d 1097 (Colo.App. 1990). [14] Further, § 14-10-115(14.5), C.R.S. (1994 Cum. Supp.), which became effective August 1, 1992, provides that:[15] Here, the trial court modified the allocation as requested by wife in her closing argument without finding any substantial and continuing changed circumstances that would justify modification of the existing order, which awarded both exemptions to father. Nor did the court make the findings required by §14-10-115(14.5) with respect to such entitlement. [16] Therefore, the order allocating the exemption to the parties in alternating years must be reversed and the cause remanded to the trial court with directions to reconsider whether a change in the allocation of the tax exemption is warranted and, if so, to make all appropriate findings as required. The court may take additional evidence as it deems necessary. See In re Marriage of Lee, 781 P.2d 102 (Colo.App. 1989).Unless otherwise agreed upon by the parties, the court shall allocate the right to claim dependent children for income tax purposes between the parties. These rights shall be allocated between the parties in proportion to their contributions to the costs of raising the children. A parent shall not be entitled to claim a child as a dependent if he or she has not paid all court-ordered child support for that tax year or if claiming the child as a dependent would not result in any tax benefit.
IV.
[17] Husband also contends that the trial court erred in ordering that “the parties shall automatically adjust child support for any cost of living increase which [husband] receives.” He argues that neither the evidence nor the law supports an automatic modification based solely on a possible increase that he might receive in the future. We agree.
(Colo.App. 1993). [20] Thus, we conclude that the court is without authority to create a presumption of changed circumstances that alone would require modification of a support order. Cf. In re Marriage of Davis, 44 Colo. App. 355, 618 P.2d 692 (1980) (prohibiting such a presumption as to maintenance); In re Marriage of Pierce, 720 P.2d 591 (Colo.App. 1985) (exclusive use of formulas is the province of the General Assembly). [21] Here, the court’s order, in effect, creates such a presumption only as to husband’s income. Thus, while the court can order both parties to exchange relevant financial information, it may not order an automatic increase in child support based solely upon a cost of living raise that husband might receive. [22] Accordingly, that part of the order requiring an automatic adjustment based solely upon husband’s income is reversed. Because this cause is being remanded on other issues, the court may reconsider whether to order the exchange of financial information under § 14-10-115(3)(b)(II).
V.
[23] Finally, husband asserts that the trial court erred in determining that, because a
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payment was missed, the standard for activation of a wage assignment had been met, and he argues that a wage assignment should not have been activated. We agree.
[24] Under § 14-14-107(5)(b), C.R.S. (1987 Repl. Vol. 6B), the statute applicable here, a wage assignment could not be activated unless by request of the obligor or by agreement of the parties, or unless the obligee filed an advance notice of activation to enforce a support order. Cf. § 14-14-111(2)(b)(I), C.R.S. (1994 Cum. Supp.) (effective January 1, 1994, a wage assignment may automatically be ordered as part of a child support order). And, § 14-14-107, C.R.S. (1994 Cum. Supp.) sets forth the procedures required to activate a wage assignment. See In re Marriage of Watters, 782 P.2d 1220 (Colo.App. 1989). [25] Here, a review of the record, which according to the designation included all pleadings and orders in the case, shows that § 14-14-107(5)(b) was not complied with. Accordingly, we agree that the order for activation of the wage assignment was in error. [26] Those portions of the orders awarding attorney fees, activating a wage assignment, ordering an automatic adjustment of child support for cost of living increases received by husband, and allocating the federal tax exemptions are reversed, and the cause is remanded to the trial court for further proceedings consistent with the views set forth in this opinion. In all other respects, the orders are affirmed. [27] JUDGE MARQUEZ and JUDGE TAUBMAN concur.