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ADVANCE SHEET HEADNOTE September 23, 2019

No. 18SC287, In re Marriage of Boettcher—Family Law—Child Support— Incomes Outside Guidelines Range.

Colorado’s child support guidelines include a schedule, codified at section

14-10-115(7)(b), C.R.S. (2019), that sets specific presumptive payment amounts

based on the number of children and the parties’ combined monthly income.

However, the schedule does not include an award amount for every conceivable

family income level. In this case, the supreme court considers how a district court

should calculate child support obligations when the parties’ combined monthly

income exceeds the uppermost income specified in the schedule. The court

concludes that the plain language of the child support statute provides that the

uppermost award identified explicitly in the schedule is the minimum

presumptive award for families with higher incomes. Accordingly, the court

holds that the district court may, within its discretion, award more than that

amount so long as it supports its order with findings made pursuant to section

14-10-115(2)(b). The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203

Supreme Court Case No. 18SC287 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 17CA262

In re the Marriage of

Petitioner:

Ryan E. Boettcher,

and

Respondent:

Christina L. Boettcher.

Judgment Affirmed en banc September 23, 2019

Attorneys for Petitioner: Eckelberry Law Firm, LLC John L. Eckelberry Denver, Colorado

Attorneys for Respondent: Aitken Law, LLC Sharlene J. Aitken Denver, Colorado Peek Goldstone, LLC Amanda M. Peek Greeley, Colorado

JUSTICE HART delivered the Opinion of the Court.

2 ¶1 Colorado’s child support guidelines provide district courts a framework for

determining the amount of child support they should award in dissolution of

marriage proceedings. One part of these guidelines is a schedule of child support

obligations that sets specific presumptive payment amounts based on the number

of children and the parties’ combined income. But that schedule does not include

an award amount for every conceivable family income level.

¶2 In this case, we must determine how a district court should calculate child

support obligations when the parties’ combined income exceeds the uppermost

specified combined monthly income of $30,000. Because we conclude that the

plain language of the statute provides that the uppermost award identified

explicitly in the schedule is the minimum presumptive award for families with

higher incomes, we determine that the district court may, within its discretion,

award more than that amount so long as the court supports its order with findings

made pursuant to section 14-10-115(2)(b), C.R.S. (2019). Accordingly, we affirm

the judgment of the court of appeals.

I. Facts and Procedural History ¶3 At the time of the dissolution of their marriage, Ryan E. Boettcher (“father”)

and Christina L. Boettcher (“mother”) agreed that neither party would pay child

support. Several years later, mother, citing a substantial change in father’s income,

sought a modification of the original decree so that she could receive child

3 support. The district court conducted an evidentiary hearing to determine

whether modification was appropriate. At the hearing, the parties admitted

evidence of their incomes showing that mother earned $13,343 per month and

father earned $92,356 per month—a combined monthly income far exceeding the

highest combined income of $30,000 per month listed in the schedule contained in

the statutory child support guidelines. See § 14-10-115(7)(b).

¶4 Father requested that the district court impose a monthly child support

obligation of $1,424.82, which would be the presumptive award amount if the

parties combined income were $30,000 per month. Father argued that the

presumptive amount of child support for that income level was also the

presumptive amount for any higher income level. If the court ordered a higher

payment, father argued, such payment would constitute a deviation from the

statutory presumptive amount and would require specific findings under section

14-10-115(8)(e).

¶5 Mother disagreed. She contended that the district court should extrapolate

father’s monthly child support obligations from the uppermost level of the

guidelines in light of the parties’ actual combined income. This approach would

result in a monthly support payment of $5,024.

¶6 The district court rejected both arguments. In doing so, it observed that

section 14-10-115(7)(a)(II)(E) provides that a court “may use discretion” in setting

4 child support amounts where the parties’ combined income is higher than $30,000,

“except that the presumptive basic child support obligation shall not be less than

it would be” if the combined income were $30,000. That statutory provision, the

court explained, was inconsistent with both father’s and mother’s respective

positions because both parties argued for an approach that denied the court the

discretion explicitly granted to it by the General Assembly.

¶7 The court proceeded to set a monthly child support award of $3,000. In

doing so, the court examined the factors set forth in section 14-10-115(2)(b) for

determining the amount of support and made the following findings: (1) the child

had no financial resources of his own; (2) the child was entitled to benefit from his

father’s financial good fortune following the dissolution of his parents’ marriage;

(3) there was a disparity in the parties’ abilities to provide for shared activities and

experiences with the child; and (4) the mother’s testimony—that she would spend

child support payments to improve the child’s standard of living and to save for

his future college expenses—was credible.

¶8 At the conclusion of the proceedings, the district court awarded mother a

portion of her attorney’s fees under section 14-10-119, C.R.S. (2019), which permits

the district court to apportion costs and fees equitably between parties based on

their relative ability to pay. Concluding that there was a disparity between

mother’s and father’s resources and income, the court determined that it was

5 equitable to award mother 70 percent of her attorney’s fees exclusive of her expert

witness fees.

¶9 Father appealed the district court’s order. A division of the court of appeals

upheld the child support award. See In re Marriage of Boettcher,

,

___ P.3d ___. The division determined that the plain language of the statute

provides that the award amount listed in the uppermost level of the child support

schedule is the minimum presumptive amount when the parties’ combined income

exceeds $30,000 per month. Id. at ¶¶ 14, 19. Further, the division concluded that

the district court had discretion to award more than the minimum presumptive

amount without making the deviation findings that would be required under

section 14-10-115(8)(e). Id. at ¶¶ 19–29. And the division found that the district

court had adequately supported its exercise of discretion in setting the award

amount with findings as to the factors set forth in section 14-10-115(2)(b). Id. at

¶¶ 19–20.

¶10 The division also upheld the district court’s award of attorney’s fees. Id. at

¶¶ 33–36. However, it rejected mother’s request for appellate fees, which she

made based on an argument that the appeal was frivolous. Id. at ¶ 37. Concluding

that a court may only award fees in “clear and unequivocal cases when the

appellant presents no rational argument, or the appeal is prosecuted for the

6 purpose of harassment or delay,” and that this was not such a case, the division

denied mother’s request. Id. at ¶ 38.

¶11 Father petitioned this court, and we granted certiorari. 1

II. Analysis ¶12 We review a child support order for an abuse of discretion. In re Balanson,

(Colo. 2001). However, we review de novo whether the district court

applied the correct legal standard as provided in the statute when crafting the

order. People v. Martinez,

(Colo. 2003). When construing a statute,

we give effect to the intent of the General Assembly by first looking to the plain

language of the statute. In re Marriage of Chalat,

(Colo. 2005). We

read the statute as a whole, giving consistent, harmonious, and sensible effect to

all of its parts. In re Marriage of Ikeler,

, 666–67 (Colo. 2007). If the

statute is clear and unambiguous, our inquiry ends, and we apply the statute as

written. Chalat,

.

1 We granted certiorari to review the following issue: Whether section 14-10-115, C.R.S. (2018), provides for the Colorado Child Support Guidelines to be the rebuttable presumption in all cases, including those where incomes exceed the uppermost threshold, which must be overcome by evidence that a deviation from the guideline amount is necessary to meet the needs of the children.

7 ¶13 Colorado’s child support guidelines were enacted in 1986 to (1) establish an

adequate amount of support for children subject to the parents’ relative ability to

pay, (2) make awards more equitable by ensuring consistent treatment of parents

in similar circumstances, and (3) improve the efficiency of the judicial process by

giving guidance in establishing levels of support and promoting settlements

between parties. See § 14-10-115(1)(a)(I)–(III). To meet these goals, the guidelines

include a ten-page “[s]chedule of basic child support obligations” with explicit

award amounts for families with one to six children and combined monthly

incomes of $1,100 to $30,000. § 14-10-115(7)(b).

¶14 There is a rebuttable presumption that a child support award should be

ordered in the amount outlined in the schedule. See § 14-10-115(8)(e). A court may

deviate from the schedule if it determines that the presumptive amount would be

“inequitable, unjust, or inappropriate.” Id. When it does so, the court must make

written or oral findings identifying the presumptive amount and its reasons for

deviating. Id. Regardless of whether the court deviates from the schedule or

awards the presumptive amount, the court must consider “all relevant factors” in

determining the amount of support. § 14-10-115(2)(b). These factors include, but

are not limited to:

• the financial resources of the child;

• the financial resources of the custodial parent;

8 • the standard of living the child would have enjoyed had the marriage not been dissolved;

• the physical and emotional condition of the child and his or her educational needs; and

• the financial resources and needs of the noncustodial parent.

§ 14-10-115(2)(b)(I)–(V).

¶15 The schedule contained in the guidelines does not include an exhaustive list

of all possible combined gross monthly incomes and their corresponding support

obligations. It only provides specific presumptive child support award amounts

for combined monthly incomes between $1,100 and $30,000. See § 14-10-115(7)(b).

For combined incomes below $1,100, the child support guidelines provide a

formula courts must apply in determining support awards. See

§ 14-10-115(7)(a)(II)(B)–(D). And when the parties’ combined income exceeds

$30,000, section 14-10-115(7)(a)(II)(E) permits the district court to “use discretion to

determine child support . . . except that the presumptive basic child support

obligation shall not be less than it would be based on the highest level of adjusted

gross income set forth in the schedule of basic child support obligations.”

(Emphases added.)

¶16 Father argues that the language in section 14-10-115(7)(a)(II)(E) creates a

presumptive child support award for all incomes over $30,000 a month, such that,

here, the district court’s award above that presumptive amount constitutes a

9 deviation from the schedule rather than a statutorily authorized exercise of

discretion. Pointing to the highest amount provided in the schedule for one child

($2,535), he argues that the district court could only award a higher level of

support on a showing that this presumptive amount was “inequitable, unjust, or

inappropriate.” § 14-10-115(8)(e). This argument misconstrues the plain language

of the statute.

¶17 Section 14-10-115(7)(a)(II)(E) expressly provides that the district court has

discretion to determine the appropriate child support amount when the parties’

combined adjusted gross income exceeds the uppermost level of the schedule,

“except that the presumptive basic child support obligation shall not be less than

it would be based on the highest level of adjusted gross income set forth in the

schedule of basic child support obligations.” This language is clear that, while an

award lower than that provided in the schedule would be a deviation from the

presumptive award and would require findings as provided in section

14-10-115(8)(e), a higher amount may be awarded within the district court’s

discretion. To the extent that previous decisions of the court of appeals are

inconsistent with this interpretation of the statute, we disapprove of them. 2

2 Some earlier decisions of the court of appeals have erroneously required deviation findings for awards higher than the highest threshold specified in the 10 ¶18 Of course, a district court’s exercise of discretion in setting an award must

always be supported by a showing that the court considered the factors outlined

in section 14-10-115(2)(b). Here, the district court appropriately exercised its

discretion in light of the relevant statutory factors.3 Considering those factors, the

court found that (1) the child had no financial resources of his own; (2) while the

standard of living during the time of marriage was relevant, it was not dispositive;

(3) the child should benefit from the father’s financial success; and (4) there was a

disparity in the parties’ abilities to provide for shared activities and experiences

with the child. Because these findings are supported by the record, we will not

child support schedule under circumstances similar to those presented here. See, e.g., In re Marriage of Upson,

, 344–45 (Colo. App. 1999). 3 On appeal, mother contended that the district court should have simply extrapolated upward from the highest level, which would have resulted in a monthly child support obligation of $5,024.52 for father. Boettcher, ¶ 21. We agree with several divisions of the court of appeals that have rejected this method. See In re Marriage of Ludwig,

, 1059–60 (Colo. App. 2005) (holding that mechanical extrapolation was inappropriate because the court made no findings establishing the children’s specific needs); In re Marriage of Van Inwegen,

(Colo. App. 1988) (concluding that it was not the General Assembly’s intent to permit automatic extrapolation from the guideline schedule when combined gross incomes exceed the uppermost level of the schedule). Mechanically extrapolating from the highest amount of the child support guidelines is not an appropriate exercise of discretion because it negates the district court’s responsibility to consider the factors provided in section 14-10-115(2)(b) when making the award.

11 disturb them. Balanson,

(noting that appellate courts defer to the trial

court’s findings of fact unless they do not find support in the record).

III. Attorney’s Fees

¶19 Mother requests that we award attorney’s fees for her costs incurred during

this appeal as well as any fees that she may incur on remand. Citing section

14-10-119, she argues that because there was a significant disparity in income and

financial resources between the parties at the time of the hearing to modify child

support, we should require father to pay her attorney’s fees. See § 14-10-119

(permitting the court to order one party to pay a reasonable amount of attorney’s

fees to the other after considering the financial resources of both parties); see also

Ikeler, 161 P.3d at 668–69 (explaining that the General Assembly provided courts

the ability to award attorney’s fees so as to “equalize the parties and ensure neither

party suffers undue economic hardship because of the dissolution of marriage”).

We remand with instructions to return the case to the district court to determine

the appropriateness of the attorney’s fee award requested. See C.A.R. 39.1; Ikeler,

.

IV. Conclusion

¶20 We conclude that the plain language of the child support guidelines

provides that the uppermost award amount provided in the guidelines is the

minimum presumptive amount for combined monthly incomes exceeding

12 $30,000. Because the district court may, within its discretion, award more than the

minimum presumptive amount so long as it considers the factors provided in

section 14-10-115(2)(b), we affirm the judgment of the court of appeals. We

remand with instructions to return the case to the district court to resolve mother’s

request for attorney’s fees.

13