Opinion by JUDGE TAUBMAN
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion. SUMMARY Family Law — Post-Dissolution — Parenting Time — Modification of Child Support
A division of the court of appeals considers a post-dissolution of marriage dispute involving the award of retroactive child support in a district court's order modifying child support. The division concludes that, when a voluntary change in parenting time occurs, a court may retroactively enter a child support order against either parent without regard to the parent's status as obligor or obligee under the existing child support order.
The resolution of this dispute requires the division to interpret a 2013 amendment to the child support statute, § 14-10-122(5), C.R.S. 2018, that reconciled two contradictory decisions issued by divisions of the court. The division determines that the legislature intended the amendment to reflect the decision in In re Marriage of ¶ 1 In this post-dissolution of marriage proceeding involving the children of Alexandre Ford Garrett (mother) and Daniel Meyer Heine (father), mother appeals the district court's order modifying child support and awarding retroactive child support. We affirm the portion of the order retroactively establishing a child support order, reverse the portion of the order determining mother's income, and remand the case for further proceedings. In so doing, we interpret a 2013 amendment to the child support statute that resolved conflicting decisions from divisions of our court concerning parents' responsibilities to pay child support when a voluntary change in parenting time occurs.
I. Relevant Facts
¶ 2 Mother and father, the parents of two children, were divorced in 2008. ¶ 3 In 2014, both parents moved to modify parenting time. In February 2015, the district court entered a week on/week off parenting time schedule and modified child support accordingly. The parents then agreed in June 2015 to modify the week on/week off parenting time schedule such that father would be the primary residential parent and mother would have parenting time every other weekend and one evening per week. Based on the revised parenting time schedule, father began paying mother a reduced amount of child support. Father then moved to modify child support in July 2016. ¶ 4 The parties again agreed to change parenting time in February 2017. Mother became the primary residential parent of one child while father remained the primary residential parent of the other child. ¶ 5 After a March 2017 hearing, the district court made the following findings with respect to the parties' incomes for child support purposes:
• father was capable of earning $20,000 per month;
• mother was doing contract work and earning $2000 to $4000 per month;
• mother had an extensive background in public relations, marketing, and communications and had historically earned at least $6000 per month until she lost her job in 2016;
• mother believed that the job market was saturated and that going forward she would not be able to earn the equivalent of her prior salary; and
• the court "was not provided with credible evidence" that mother was incapable of reaching her income potential if employed full time in her field.
¶ 6 Based on these findings, the court calculated child support using $6000 per month as mother's income. The court further determined that because of the substantial changes in parenting time beginning in June 2015, mother should have been paying child support to father and therefore owed him $21,389 in arrearages. Offsetting mother's arrearages against father's current child support obligation, the court ordered father to pay mother $225.58 per month for twenty-four months and then $1116.79 per month thereafter.
II. Income Imputation
¶ 7 Mother contends that the district court erred when it imputed $6000 per month in income to her without finding she was voluntarily underemployed. We agree.
A. Standard of Review
¶ 8 We review child support orders for abuse of discretion. In re Marriage of Davis, 252 P.3d 530, 533 (Colo. App. 2011). ¶ 9 Whether potential income should be imputed to a parent in determining child support is a mixed question of fact and law. People v. Martinez, 70 P.3d 474, 480 (Colo. 2003). We defer to the district court's factual findings if they are supported by the record. Id. We review the district court's application of legal standards and legal conclusions de novo. In re Marriage of Connerton, 260 P.3d 62, 65 (Colo. App. 2010).
B. Legal Principles
¶ 10 If a parent is voluntarily underemployed, child support must be calculated based on that parent's potential income. § 14-10-115(5)(b)(I), C.R.S. 2018; see In re Marriage of Krejci, 2013 COA 6, ¶ 28. "Voluntarily" in this context means that the parent is underemployed "intentionally, of free will." Martinez, 70 P.3d at 477-78. Thus, in order to impute potential income to a parent, the district court must find that the parent is shirking his or her child support obligation by unreasonably forgoing higher-paying, obtainable employment. Id. at 480; see Krejci, ¶ 28. Imputation of income is an exception to computing child support based on actual income and should be applied with caution. Martinez, 70 P.3d at 478-79. ¶ 11 If the court finds that a parent is voluntarily underemployed after losing a job, it must determine what the parent can reasonably earn and contribute to the child's support by considering the following factors:
[the parent's] firing and post-firing conduct; the amount of time the parent spent looking for a job of equal caliber before accepting a lower paying job; whether the parent refused an offer of employment at a higher salary; whether the parent sought a job in the field in which he or she has experience and training; the availability of jobs for a person with the parent's level of education, training, and skills; the prevailing wage rates in the region; the parent's prior employment experience and history; and the parent's history of child support payment.
Id. at 480. The court's findings must be sufficiently specific so as to inform the appellate court of the basis for its order.
In re Marriage of Campbell, 140 P.3d 320, 324 (Colo. App. 2006).
C. Analysis
¶ 12 Mother presented evidence at the hearing about her work in marketing and public relations and about her earnings. Her tax was saturated. However, it did not explicitly find that mother was voluntarily underemployed and shirking her child support obligation, and the record does not support such findings. See Campbell, 140 P.3d at 324. Nor did the court make any findings concerning the reasonableness of mother's efforts to secure a full-time position at her previous salary. See Krejci, ¶ 29. ¶ 16 Thus, we remand the case to the district court for additional findings, reconsideration of mother's income, and recalculation of child support accordingly. See Martinez, 70 P.3d at 481; Krejci, ¶¶ 27-30; Campbell, 140 P.3d at 324-25.
III. Retroactive Child Support
¶ 17 Mother further contends that the district court erred in applying section 14-10-122(5), C.R.S. 2018, and ordering her to pay retroactive child support back to June 2015, when the parties' mutually agreed upon change in physical care of the children took place. We disagree with mother's contention that imposing a retroactive child support obligation under these circumstances is prohibited.
A. Standard of Review
¶ 18 We review child support orders for an abuse of discretion. In re Marriage of Atencio, 47 P.3d 718, 720 (Colo. App. 2002). We review the district court's application of legal standards and legal conclusions de novo. Connerton, 260 P.3d at 65.
B. Rules of Statutory Interpretation
¶ 19 Resolution of this appeal requires us to determine the meaning of section 14-10-122(5), which is a question of law that we review de novo. In re Marriage of Joel, 2012 COA 128, ¶ 18. ¶ 20 When interpreting a statute, we look first to its plain language, giving the words and phrases their plain and ordinary meanings. § 2-4-101, C.R.S. 2018; Joel, ¶ 18. If the statute is clear, we apply it as written. Joel, ¶ 18. But if the statute is ambiguous, or susceptible of more than one reasonable meaning, we may determine the General Assembly's intent by looking to the legislative history. In re Marriage of Ikeler, 161 P.3d 663, 668 (Colo. 2007). "Our task is to choose a construction that gives effect to the legislature's intent and that serves the purpose of the overall statutory scheme." Id.
C. Legislative History and Legal Principles
¶ 21 Ordinarily, a child support modification order is effective as of the date the motion to modify is filed. See §§ 14-10-122(1)(a), (d); see also In re Marriage of Paige, 2012 COA 83, ¶ 7. However, when there has been a court-ordered, voluntary, or mutually agreed upon change in the physical care of a child, child support is modified as of the date of the change in care, rather than as of the date the motion to modify is filed. § 14-10-122(5); see also Paige, ¶ 7. ¶ 22 Prior to 2013, when a mutually agreed upon change in physical care occurred, section 14-10-122(5), C.R.S. 2012, allowed a court to retroactively modify those "provisions for child support of the obligor under the existing child support order." (Emphasis added.) Divisions of this court were split concerning whether that language permitted a parent's child support obligation to be retroactively modified when the parent was not an obligor under the existing child support order. Compare In re Marriage of White, 240 P.3d 534 (Colo. App. 2010) (construing statute according to its plain language to find that it permitted retroactive modification as to the obligor only), with In re Marriage of Emerson, 77 P.3d 923 (Colo. App. 2003) (construing statute more broadly to find that it intended child support of the obligor in the existing order as of the date of the change of custody to ensure that the parent who gives up custody," and no longer incurs the associated expenses, "does not receive a windfall." Id. at 540. ¶ 28 In 2013, the legislature amended section 14-10-122(5) in two ways. First, it clarified that a district court can modify or terminate the obligor's child support obligation as of the date physical care changed.
Notwithstanding the provisions of subsection (1) of this section, when a court-ordered, voluntary, or 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
modified or terminated as of the date when physical care was changed.
Ch. 103, sec. 3,
§ 14-10-122(5), 2013 Colo. Sess. Laws 354 (emphasis added). Second, it added the following language: "The provisions for the establishment of a child support order based on a court-ordered, voluntary, or mutually agreed upon change of physical care may also be entered retroactively to the date when the physical care was changed."
Id. We conclude that these modifications, when read together, still do not resolve the statute's
Care & Human Servs. Comm., 69th Gen. Assemb., 1st Sess. (Feb. 19, 2013) (statement of Representative May). The Child Support Commission is charged with reviewing the child support guidelines and recommending statutory amendments.
See § 14-10-115(16). The Commission's 2011 report is the genesis of the legislature's 2013 amendments to
section 14-10-122(5). ¶ 31 In its report, the Commission explicitly recognized the conflict between
White and
Emerson and recommended the statutory amendments "to empower a court
with discretion to retroactively establish a child support obligation back to the date of the mutually agreed upon change of physical care." State of Colorado Child Support Commission, Final Report, at 41 (2011), https://perma.cc/2XB5-7LDR (emphasis added). The Commission provided three reasons in support of its amendments:
1. Parents owe a continuous duty to provide financial support for their child until emancipation, regardless of the location of the child's residence;
2. The duty to provide support should not lapse, during a child's minority, just because of a change in the residence of the child; and
3. The child is the person for whom support is due and a child should not be penalized because the new custodial party fails to
promptly act to seek a modification of the existing order.
Id. Because these reasons mirror those set forth in
Emerson, we conclude that the General Assembly's 2013 amendments to
section 14-10-122(5) legislatively overrule
White. Therefore, we further conclude that the statute allows a court to retroactively enter a child support order against either parent, as of the date of a change in physical care of a child, regardless of the parent's status as an obligor or obligee under the existing child support order.
D. Application
¶ 32 In this case, mother was the obligee under the existing child support order. In June 2015, when the parties agreed that their children would live with father, they also agreed that father's child support obligation would be reduced. Father then moved to modify child support, asking the court to retroactively establish a child support order from June 2015 forward. ¶ 33 Even though mother was the obligee under the existing child support order, the court, consistent with Emerson and as permitted by the 2013 amendments to section 14-10-122(5), retroactively established a child support order obligating mother to pay support she and father had an oral contract as to the modified child support, and because the doctrine of equitable estoppel relieved her of her obligation to pay retroactive child support. Because mother did not raise these arguments in the district court, however, we may not address them here. See Melat, Pressman & Higbie, L.L.P. v. Hannon Law Firm, L.L.C., 2012 CO 61, ¶ 18 ("It is axiomatic that issues not raised in or decided by a lower court will not be addressed for the first time on appeal."); cf. In re Marriage of Boettcher, 2018 COA 34, ¶ 32 (upholding retroactive modification order when parent did not argue a basis for undue hardship and substantial injustice in district court). In its discretion, however, the district court may consider these arguments on remand.
IV. Conclusion
¶ 36 The portion of the district court's order retroactively establishing a child support obligation for mother is affirmed, the portion of the order determining mother's income is reversed, and the case is remanded for further proceedings as provided herein. JUDGE BERNARD and JUDGE WELLING concur.