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The Colorado Lawyer | August 2012 | Vol. 41, No. 8 91
C
RS § 14-10-122(1)(a) provides that: “[T]he provisions of
any decre...
mary caretaker of the children. Specifically, different divisions of
the Court of Appeals vary in their interpretation of ...
In August 2008, father brought a motion to modify child sup-
port and asked that child support be modified retroactively t...
as of the change in physical care and commencing mother’s sup-
port obligation as of the date father filed his motion—that...
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Retroactive Child Support - Conflicting Decision and Practical Advice (Colorado Lawyer August 2012)

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Retroactive Child Support - Conflicting Decision and Practical Advice (Colorado Lawyer August 2012)

  1. 1. The Colorado Lawyer | August 2012 | Vol. 41, No. 8 91 C RS § 14-10-122(1)(a) provides that: “[T]he provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification.”However,the statute provides one excep- tion to the rule that retroactive modification is limited to the date a motion to modify is filed: When a mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the exist- ing child support order,if modified pursuant to this section,will be modified as of the date when physical care was changed.1 Recent Colorado Court of Appeals cases regarding the retroac- tive modification of child support after an agreed-upon change of physical care are conflicting and ripe for review by the Colorado Supreme Court.Until the Supreme Court decides the issue or the statute is further clarified or amended by the General Assembly, district courts might resolve the issue in a conflicting manner. Overview of Retroactivity Generally, child support is modifiable from the date a motion to modify is filed.2 In 1991, the General Assembly crafted an exception to the general rule prohibiting retroactive modification in CRS § 14-10-122.The 1991 version of CRS § 14-10-122(5) read: When a voluntary change of physical custody occurs,the provi- sions for support, if modified pursuant to this section, will be modified as of the date when physical custody was changed.3 In 1992,the General Assembly added CRS § 14-10-122(1)(d): If . . . child support is modified pursuant to this section, the 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. In no instance shall the order be retroactively modified prior to the date of filing.4 In In re the Marriage of Pickering, the court of appeals deter- mined that § 14-10-122(1)(d) and (a), which provided that child support can be modified only as to installments accruing subse- quent to the filing of the motion for modification, directly con- flicted with section (5).5 The Pickering court determined that sub- sections (1)(d) and (1)(a) evidenced “a clear and manifest intent by the General Assembly to limit modifications of child support to the date the motion for modification was filed.”6 Applying princi- ples of statutory construction, the court determined that because subsection (1)(d) was enacted after section (5) and it contained the “unequivocal statement that ‘in no instance’shall the order modi- fying child support be retroactively modified prior to the date the motion for modification was filed,” section (5) was repealed by implication.7 In 1998, in reaction to the Pickering decision, the General Assembly amended CRS § 14-10-122(5) to add the phrase: when a mutually agreed upon change of physical care occurs,the provisions for child support of the obligor under the existing child support order,if modified pursuant to this section,will be modi- fied as of the date when physical care was changed.8 The General Assembly also carved out an explicit exception to the general rule that retroactive modification is prohibited when it ref- erenced section (5) in subsections (1)(a),(1)(c),and (1)(d). Since the 1998 amendment to CRS § 14-10-122(5), the court of appeals has issued conflicting opinions in cases where there was a change in physical care and the existing obligor became the pri- FAMILY LAW Retroactive Child Support: Conflicting Decisions and Practical Advice by Laura E. Shapiro and James M. Cordes This article provides an overview of the law regarding child support retroactivity when there has been a voluntary change in physical care, unsettled case law in the area, and insight into approaching retroactivity in these types of cases. Family Law articles are sponsored by the CBAFamily Law Section to provide information to family law practitioners.Articles focus on practice tips and discussions of current issues within the realm of family law. About theAuthors Laura E. Shapiro is the owner of the Law Office of Laura E. Shapiro, P.C., and has specialized in family law since 1987—(303) 695-0200, laura@lshapirolaw.com. James M. Cordes is an associate attorney at of the Law Office of Laura E. Shapiro, P.C., and practices family law— (303) 695-0200, james@lshapirolaw.com. Coordinating Editors PatriciaA. Cooper, Denver, of the Law Office of Stephen J. Harhai—(303) 329-8300, tcooper@harhai.com; Mere- dith Patrick Cord, Colorado Springs, of Johnson & Cord, PC—(719) 471-4034, mpc@johnsoncord.com Reproduced by permission. ©2012 Colorado Bar Association, 41 The Colorado Lawyer 91 (August 2012). All rights reserved.
  2. 2. mary caretaker of the children. Specifically, different divisions of the Court of Appeals vary in their interpretation of CRS § 14-10- 122(5) and whether, in these situations, child support should be modified back to the date the change in physical care occurred. The Emerson Decision In 2003, the First Division of the Colorado Court of Appeals decided In re the Marriage of Emerson.9 In Emerson,the court con- sidered whether the lower court erred in modifying child support retroactive to the date a change in physical care occurred, in favor of the former obligor. Mother was named the primary residential parent at Permanent Orders.10 Three years later, mother allowed the children to live with father and father became the primary res- idential parent.11 A year after that,father filed a motion to modify child support and requested that the modification be retroactive to the date of the agreed-upon change of physical care.12 The trial court retroactively modified child support to the date father became the primary residential custodian and determined that mother owed retroactive support to father.13 Mother argued on appeal that because the statute does not mention the support obligation of the former obligee, the statute does not require a concomitant and immediate imposition of a support obligation on the prior obligee.14 In other words,mother argued that although father’s obligation to pay support to mother for the children under the existing order ceased when father became primary caretaker, mother did not simultaneously and automatically become an obligor charged with providing support.15 Using traditional principles of statutory construction,legislative intent, and plain and ordinary meaning, the First Division found that the legislature’s use of “modified” instead of “terminated” in § 14-10-122(5) signals that neither parent’s child support obliga- tion terminates when a change in physical care occurs; rather, the identity of the obligor and the burden of support simply shifts from one parent to the other.The court found that this reading of the statute comports with “the duty of both parents to provide con- tinuing support and prevents a lapse in support.”16 The court fur- ther found that mother’s interpretation was illogical because it would “allow a lapse in support during a child’s minority,” and would provide one parent a temporary reprieve from his or her duty of support.17 Accordingly,the Court of Appeals affirmed the district court’s order that adopted the magistrate’s award of retro- active support to father back to the date of the change in physical care.18 The White Decision In 2010, the Fifth Division of the Colorado Court of Appeals addressed the same issue in In re the Marriage of White.19 Mother was the primary residential custodian and father was ordered to pay child support in the dissolution of marriage.20 In June 2007, the parties orally agreed that father would be the primary residen- tial custodian,father would stop paying mother child support,and mother would not have to pay child support.21 FAMILY LAW 92 The Colorado Lawyer | August 2012 | Vol. 41, No. 8
  3. 3. In August 2008, father brought a motion to modify child sup- port and asked that child support be modified retroactively to the date of the agreed-upon change of physical care.22 The district court denied father’s request and modified child support retroac- tive to the date that father filed his motion. Father appealed and, relying in part on Emerson, argued that the lower court was required to modify support as of the date the change in physical care occurred.23 The Fifth Division disagreed with father and declined to apply the holding in Emerson.Stating that it was relying on longstanding principles of statutory interpretation, the White court found that when the General Assembly first enacted CRS § 14-10-122(5) in 1991,it did not limit the modification of an existing support order to child support payable by the obligor, because the statute at that time read as follows: When a voluntary change of physical custody occurs,the provi- sions for support, if modified pursuant to this section, will be modified as of the date when physical custody was changed.24 However, the court reasoned that the legislature intended to change the meaning and effect of CRS § 14-10-122(5) when it amended the statute in 1998 to read: when a voluntary change of physical care occurs, the provisions for child support of the obligor under the existing child support order,if modified pursuant to this section,will be modified as of the date when physical care changed.25 Specifically, the court found that only the child support obliga- tion of the “obligor under the existing child support order”could be modified retroactive to the date a change in physical care occurred. The White court further opined that the General Assembly must not have intended the 1998 version of the statute to shift the burden of paying child support from one parent to the other, because it could have reenacted the 1991 version of CRS § 14-10- 122(5).Instead,the General Assembly added specific reference to the obligor.26 In addressing the issue of parents’continuing duty of support to their children, the court concluded that the general provisions of CRS § 14-10-115 that all parents have a duty of support to their children are reconcilable with the specific limitations on retroactive modification of child support set forth in CRS § 14-10-122(5) and (1)(c).The court further stated that CRS § 14-10-122(1) gives the parent who assumed physical care the right and choice to file a motion to require the other parent to pay support and the right to postpone filing such a motion,in which case CRS § 14-10-122(1) acts to that parent’s detriment.27 In a specially concurring opinion in White, Judge Loeb agreed with the result reached by the majority but opined that the trial court’s order could be affirmed without rejecting the statutory analysis in Emerson.28 Relying on the court’s broad equitable pow- ers in domestic relations matters and CRS § 14-10-115(8)(e), which permits the court to deviate from the child support guide- lines when their application would be “inequitable,unjust,or inap- propriate,”Judge Loeb concluded that the trial court did not abuse its discretion in refusing to impose a support obligation on mother FAMILY LAW The Colorado Lawyer | August 2012 | Vol. 41, No. 8 93
  4. 4. as of the change in physical care and commencing mother’s sup- port obligation as of the date father filed his motion—that is, in calculating mother’s support obligation at $0 between the change in physical care and the filing of father’s motion.29 Equitable Estoppel In certain circumstances, equitable estoppel might bar the retroactive modification of child support. Like CRS § 14-10- 115(8)(e),equitable estoppel is based on the “principle of fair deal- ing and is designed to aid in the administration of justice when a rigid and inflexible application of the law would otherwise result in an injustice.”30 To date, equitable estoppel with regard to child support has been applied only in the adoption context.31 In In re the Marriage of Dennin,father was the obligor and com- plied with the support order until the parties entered into an agree- ment to terminate child support payments in exchange for consent from father for the minor child to be adopted by her stepfather.32 Four years after the agreement, the adoption had not been com- pleted and mother sought arrears.33 The court held that mother was estopped from recovering arrears because father detrimentally relied on the agreement to terminate support payments because he assumed,and had no reason to know otherwise,that the adoption had been completed.34 In the context of child support obligations [t]he party asserting an estoppel claim must demonstrate that he reasonably relied to his detriment upon the acts or represen- tations of the other person and that he had no knowledge or convenient means of knowing the facts.35 In opposing a request for retroactive modification based on a change in physical care,the former obligee might be able to argue that he or she detrimentally relied on a former obligor’s promise regarding child support from the date of the change of physical care through the date the motion to modify was filed. Conclusion Currently, there are conflicting Colorado Court of Appeals’ opinions interpreting CRS § 14-10-122(5) and whether an obligee under a child support order can be ordered to pay support retro- active to the date of an agreed-upon change of physical care.Until the Supreme Court or the General Assembly settles the conflict, the district courts are left to make the determination as best they can. Practitioners representing an obligor who became primary caretaker of the children by agreement with the obligee can argue that the statute requires modification retroactive to the change in physical care, per the reasoning in Emerson. Practitioners repre- senting an obligee in such a situation can argue that the statute bars retroactive modification to the date of the change in care as to the obligee, per the reasoning in White. Under some circumstances, they also might argue that equitable estoppel bars modification retroactive to the change in physical care. In some instances, the trial court may, as suggested by Judge Loeb in his concurring opinion in White, follow Emerson but decline to impose a child support obligation on the obligee before the filing of the motion,if equitable considerations clearly support such a result. Until this conflict created by Emerson and White has been resolved,practitioners representing a party who has assumed primary care after an agreed-upon change in physical care should advise the client of the implications of delaying the filing of a motion to modify child support after the change in physical care has occurred. Notes 1.CRS § 14-10-122(5). 2.CRS § 14-10-122(1). 3.91 Colo.Sess.Laws 253. 4.CRS § 14-10-122(1)(d); 92 Colo.Sess.Laws 203. 5.In re Marriage of Pickering,967 P.2d 164,165 (Colo.App.1997). 6.Id. 7.Id.at 166. 8.CRS § 14-10-122(5) (emphasis added); 1998 Colo.Sess.Laws 765. 9.In re the Marriage of Emerson,77 P.3d 923,924 (Colo.App.2003). 10.Id. 11.Id. 12.Id. 13.Id. 14.Id. at 925. 15.Id. 16.Id. 17.Id. 18.Id. 19.In re the Marriage of White,240 P.3d 534,536 (Colo.App.2010). 20.Id. 21. Id. See also In re the Marriage of Paige, 2012 COA 83, No. 11CA0893 (May 10, 2012) (confirming that CRS § 14-10-122(5) does not require that the agreement to change physical care be in writing). 22.Id. 23.Id. 24.Id. at 537. 25.Id. 26.Id.at 540. 27.Id. 28.Id. at 542. 29.Id. 30.Johnson v.Indus.Comm’n of State of Colo.,761 P.2d 1140,1146 (Colo. 1988). 31.See In re the Marriage of Dennin,811 P.2d 449 (Colo.App.1991). 32.Id. at 449-50. 33.Id. 34.Id. 35.Id. at 450. n FAMILY LAW 94 The Colorado Lawyer | August 2012 | Vol. 41, No. 8

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