Opinion
23CA1508
05-23-2024
In re the Marriage of Enrique Jose Gonzalez, Appellee, and Ana Laura Gonzalez, Appellant.
Hays & Strode Law, P.C., Katie Hays, Angela Strode, Rifle, Colorado, for Appellee. Peek Vasquez, LLC, Ricardo Vasquez, Denver, Colorado, for Appellant.
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Garfield County District Court No. 22DR30076 Honorable John F. Neiley, Judge.
Hays & Strode Law, P.C., Katie Hays, Angela Strode, Rifle, Colorado, for Appellee.
Peek Vasquez, LLC, Ricardo Vasquez, Denver, Colorado, for Appellant.
OPINION
MOULTRIE JUDGE.
¶ 1 Ana Laura Gonzalez (mother) appeals the district court's permanent orders allocating parenting time and determining child support and maintenance following the dissolution of her marriage with Enrique Jose Gonzalez (father). We affirm.
I. Background
¶ 2 The district court dissolved the parties' ten-year marriage and entered permanent orders. In allocating parenting time for their two children, the court denied mother's request to have the children relocate with her to Arizona, finding that such a move was not in their best interests. The court ordered that if mother moved to Arizona, the children would primarily reside with father and mother could exercise parenting time during their school breaks. Alternatively, if mother remained in Colorado, the children would be with her four days per week and with father the remaining three days. (Mother remained in Colorado after the hearing.)
¶ 3 The district court also ordered father to pay mother child support in the amount of $389 per month and maintenance in the amount of $510 per month for two years. In reaching these determinations, the court found that mother was voluntarily underemployed, and it imputed to her a potential gross income of $2,600 per month. It also found that father's gross income was $4,853 per month.
II. Child Support and Maintenance
¶ 4 Mother contends that the district court erred by determining the parties' gross incomes for purposes of child support and maintenance. We consider and reject her contentions.
A. Standard of Review
¶ 5 We review a court's determinations on maintenance and child support for an abuse of discretion. In re Marriage of Tooker, 2019 COA 83, ¶ 12. A court abuses its discretion when it decides an issue in a manifestly arbitrary, unreasonable, or unfair manner, or it misapplies the law. In re Marriage of Evans, 2021 COA 141, ¶ 25. We defer to the court's income findings unless the record does not support them. In re Marriage of Gibbs, 2019 COA 104, ¶ 9.
B. Mother's Income
¶ 6 Mother argues that the district court erred by finding her voluntarily underemployed and imputing to her a gross income of $2,600 per month. We are unpersuaded.
¶ 7 A party's income for purposes of determining child support and maintenance is generally that party's actual gross income. See § 14-10-114(8)(a)(II), C.R.S. 2023; § 14-10-115(3)(c), C.R.S. 2023. But if the court finds that a party is voluntarily underemployed, the court must calculate child support and maintenance based on that party's potential income. § 14-10-114(8)(c)(IV); § 14-10-115(5)(b)(I); see People v. Martinez, 70 P.3d 474, 477 (Colo. 2003) (noting that the parents have a financial obligation to support their children).
¶ 8 Mother said that she was currently working as a housekeeper twelve hours per week and earning $1,040 per month (based on her hourly rate of $20 per hour). She explained that she needed a flexible job so that she could properly care for the children, the younger of which had Down syndrome. She also said that her opportunities for employment were limited because of her undocumented immigration status.
¶ 9 Father argued that mother was voluntarily underemployed. He said that mother previously worked longer hours for higher pay as a housekeeper on a ranch and, shortly before the dissolution proceeding, quit that job. The manager at the ranch testified that mother had worked twenty to thirty hours per week and was paid $30 per hour, and he said that she just stopped showing up for her shift. The manager also confirmed that other housekeeping jobs were available in the area that paid between $20 and $30 per hour.
¶ 10 The district court weighed the conflicting evidence and determined that mother was voluntarily underemployed. The court acknowledged mother's child care responsibilities but found that she could work more than she was presently working without compromising the children's care. It explained that mother had been able to work on average about twenty-seven hours per week at her previous job. And the court found that the children were attending school full time, father had been allocated substantial parenting time, he and his family were available to further assist mother with child care, and mother's older children (not from this marriage) could also help mother take care of the children.
¶ 11 The district court then determined that mother could earn at least $2,600 per month. It explained that this amount of gross income equated to thirty hours per week at $20 per hour, her most recent rate of pay; twenty hours per week at $30 per hour, her previous rate of pay; or forty hours per week at $15 per hour, which mother indicated she could earn at a job she had been offered in Arizona.
¶ 12 Mother argues, however, that the district court erred by "imputing [to her] income of $2,600" per month because of "her immigration status and work authorization." As best we can understand, she asserts that her immigration status was a "relevant" factor and the court did not consider it when determining her potential income and ability to work. See § 14-10-115(5)(b.5)(II)(J) (directing the court to consider "[o]ther employment barriers" when determining a parent's potential income). But the court expressly noted mother's "lack of citizenship" when reaching its decision. And it did not find that her immigration status was an insurmountable barrier for her to secure employment. Indeed, the court found, with record support, that mother had historically worked as a house cleaner, worked at different jobs in the community that paid her between $20 and $30 per hour, and received a full-time job offer in Arizona. See Martinez, 70 P.3d at 480 (noting that a district court's decision on a party's potential income "is typically a question of fact" entitled to deference on review). Although mother believes that the court should have given her immigration status greater weight, we may not reevaluate the conflicting evidence and set aside the court's findings, when as here, they are supported by the record. See Tooker, ¶ 31 ("[A]ny inferences and conclusions to be drawn from the conflicting evidence were for the district court to resolve."); see also Evans, ¶ 45 ("We are not at liberty to re-evaluate the conflicting evidence and set aside findings supported by the record.").
¶ 13 Mother also argues that the district court "failed to take into account the specific needs" of their younger child with Down syndrome. See § 14-10-115(5)(b.5)(II)(N) (directing the court to consider the effect a child's "specific needs" may have on a parent's ability to work when determining potential income). But again, the court expressly considered mother's child care obligations. The court found that while the younger child required supervision, she was "quite functional" and learning to "do things by herself." And it found that mother's child care obligations were not "unusual" and had not prevented her from working longer hours at her previous job. The court also noted that mother was not solely responsible for the children's care, finding that the children would be with father at least three days per week, were attending school, and could be cared for by other family members. We therefore see no indication that the court failed to consider either child's needs, and mother directs us to nothing in the record to show otherwise. See Tooker, ¶ 31; Evans, ¶ 45.
¶ 14 Mother further notes that the district court found that she had a more advanced skillset than her current work situation implied and suggests that the court improperly relied on this fact. While this was one of the many circumstances considered by the court, mother develops no argument to explain why such consideration was improper. See In re Parental Responsibilities Concerning S.Z.S., 2022 COA 105, ¶ 29 (declining to consider an undeveloped argument).
¶ 15 To the extent mother also asserts that the district court failed to find that she was shirking her financial responsibilities, we will not consider her undeveloped assertion raised for the first time in her reply brief. See id. at ¶¶ 24, 29. In any event, such a finding was implicit in the court's ruling. See id. at ¶ 23 (noting that a finding was implicit in the court's ruling).
¶ 16 The district court thus did not err by determining that mother was voluntarily underemployed and imputing to her a potential income of $2,600 per month.
C. Father's Income
¶ 17 Mother next contends that the district court erred by not including all of father's earned income in his gross income. We disagree.
¶ 18 A party's gross income for purposes of determining child support and maintenance generally means income from any source, which may include wages, self-employment income, and income from a limited liability company. § 14-10-114(8)(c)(I)(B), (D), (O), (W); § 14-10-115(5)(a)(I)(B), (D), (O), (W). However, by statute, a party's gross income does not include the income a party earns from additional jobs that result in the party's employment of more than what would otherwise be considered full-time employment. § 14-10-114(8)(c)(II)(C); § 14-10-115(5)(a)(II)(C).
¶ 19 The district court found that father was working two jobs. It explained that he was effectively a full-time hourly employee at Sunny Ranch and that he also worked part time at Thomas Land Management on the weekends. The court declined to include any income father earned from his part-time job at Thomas Land Management and determined that his gross income from Sunny Ranch was $4,853 per month (forty hours per week at $28 per hour). See § 14-10-114(8)(c)(II)(C); § 14-10-115(5)(a)(II)(C).
¶ 20 Mother argues that father was not a full-time employee at Sunny Ranch, and thus sections 14-10-114(8)(c)(II)(C) and 14-10-115(5)(a)(II)(C) did not exclude his additional income from Thomas Land Management. She explains that father operated a limited liability company (LLC) and, through that LLC, contracted his services to Sunny Ranch. Cf. In re Marriage of Upson, 991 P.2d 341, 342-43 (Colo.App. 1999) (agreeing that a court's gross income determination may include income the party received from his primary employment and additional distributions he received from his corporation), disapproved of on other grounds by In re Marriage of Boettcher, 2019 CO 81. The district court rejected this argument, and the record supports its determination. See Gibbs, ¶ 9.
¶ 21 The district court acknowledged that father created the LLC and that he used it to collect payments from Sunny Ranch. But the court found that in "reality," father worked full time on an hourly pay basis for Sunny Ranch "like any other employee," and it determined that his LLC was nothing more than "a shell structure to facilitate his lack of citizenship status and to manage his tax[es]." The court thus found that father's LLC was not "a 'true' business" but "an accounting vehicle."
¶ 22 Indeed, father testified that he created the LLC because he did not "have the clearance to work in the" United States. The manager at Sunny Ranch also testified that father had been "an employee" for approximately four years, generally worked forty hours or more per week, was paid an hourly rate, and, for the most part, was treated like "any other traditional employee."
¶ 23 Although mother highlights evidence that may have supported a different conclusion, the district court weighed the conflicting evidence and reasonably concluded that father was effectively a full-time hourly employee at Sunny Ranch. See Tooker, ¶ 31; Evans, ¶ 45. It therefore did not err by limiting his gross income to that full-time job for purposes of determining child support and maintenance. See § 14-10-114(8)(c)(II)(C); § 14-10-115(5)(a)(II)(C).
¶ 24 To the extent mother directs us to Sedgwick Properties Development Corp. v. Hinds, 2019 COA 102, that case addressed a liability claim that sought to pierce the corporate veil against the alleged alter ego of an LLC. See id. at ¶¶ 1, 5, 32-33. No such claim existed here, and mother does not develop any legal argument explaining why that analysis is relevant to the district court's income determination. See S.Z.S., ¶ 29.
¶ 25 The district court therefore did not err by finding that father's gross income was $4,853 per month.
III. Parenting Time
¶ 26 Mother also contends that the district court erred by not allowing the children to relocate to Arizona with her when it allocated parenting time. We disagree.
¶ 27 When a parent asserts an intent to relocate before the entry of permanent orders, the court must accept the parent's intended relocation and determine an allocation of parenting time that serves the children's best interests. See Spahmer v. Gullette, 113 P.3d 158, 161-64 (Colo. 2005); see also In re Marriage of Collins, 2023 COA 116M, ¶ 7 (recognizing the court's duty to allocate parenting time in accordance with the children's best interests). In making this determination, the court considers all relevant factors, including the statutory best interests factors. § 14-10-124(1.5)(a), C.R.S. 2023.
¶ 28 A court has broad discretion over parenting time orders, and we exercise every presumption in favor of upholding its decision. Collins, ¶ 8. We therefore will not disturb the court's ruling if the record supports it. Id.
¶ 29 In a thorough ruling, the district court considered and made findings on the relevant statutory best interests factors. In particular, it found that each parent had a close relationship with the children and that they disagreed on mother's proposed relocation with the children. See § 14-10-124(1.5)(a)(I)-(III). The court then noted the close ties and connections the children had established in their current community, and it found that they had "zero ties or connections to Arizona." See § 14-10-124(1.5)(a)(III), (IV). The court also found that the children were well adjusted in their current home and school setting, and that they had a well-established network of teachers, therapists, caregivers, and medical professionals, particularly the younger child. See § 14-10-124(1.5)(a)(IV), (V). And it found that father's sister, who was living in Colorado and planned to move in with father, had a strong relationship with the children. See § 14-10-124(1.5)(a)(III).
¶ 30 The district court further found that mother's relocation plan was only "half formed." It noted that mother did not raise the issue until shortly before the permanent orders hearing. It also explained that while mother planned to temporarily live with her cousin, her cousin intended to move a few months later and mother's housing was "totally unknown" after that move. And the court noted that mother had not established whether any medical providers were available to care for the younger child in Arizona. See § 14-10-124(1.5)(a)(V).
¶ 31 In addition, the district court found that, if mother and the children moved in with mother's cousin, it would mean that a total of nine people would be living together in a two-bedroom home. See § 14-10-124(1.5)(a). By contrast, it found that father intended to stay in the current home and that, even after his sister moved in, there was enough room for all of them to live there comfortably. See § 14-10-124(1.5)(a)(IV).
¶ 32 The district court then determined that relocation would not be in the children's best interests given their "extremely strong and enduring" ties to Colorado.
¶ 33 Once more, mother points to the conflicting evidence that she suggests could have supported granting the relocation. But the resolution of those conflicts was for the district court, not us. See Evans, ¶ 45. And given the ample record support for the court's findings, we will not disturb its determination. See Collins, ¶ 8.
¶ 34 Mother also claims that the district court afforded "little weight" to her relocation request when it found that she did not raise the issue until shortly before the hearing. The court's thorough consideration of the statutory best interests factors and its detailed analysis of those factors in relation to her relocation request belies mother's claim.
¶ 35 Mother further challenges the district court's findings that the children had no ties or connections to Arizona. True, mother's cousin lived in Arizona and mother had been communicating with her. But mother's cousin confirmed that neither she nor her husband had ever met the children. And mother directs us to nothing else in the record showing that the children had an established connection to Arizona.
¶ 36 We reject any suggestion by mother that the district court erred by not adopting the child and family investigator's recommendation to have the children relocate with mother. The court had no obligation to adopt that recommendation, and it sufficiently explained its reasons for not doing so in its ruling. See In re Parental Responsibilities Concerning B.J., 242 P.3d 1128, 1133 (Colo. 2010) ("Ultimately it is the role of the court to weigh the [child and family investigator's] recommendations pursuant to the appropriate standards to determine whether they are in the children's best interests.").
¶ 37 The district court thus did not abuse its discretion by denying mother's requested relocation with the children.
IV. Disposition
¶ 38 The judgment is affirmed.
JUDGE DUNN and JUDGE YUN concur.