Summary
setting forth the "clearly erroneous" standard of review
Summary of this case from In re Marriage of LishnevskyOpinion
No. 93CA1526
Decided February 23, 1995. Opinion Modified, and as Modified, Petitions for Rehearing DENIED May 18, 1995. Petition for Writ of Certiorari DENIED October 10, 1995
Appeal from the District Court of Boulder County Honorable Morris W. Sandstead, Jr., Judge No. 89DR1809.
ORDER REVERSED AND CAUSE REMANDED WITH DIRECTIONS.
Cohen Cohen, P.C., Sara-Jane M. Cohen, Boulder, Colorado, for Appellee.
Stevens, Littman Biddison, Roger E. Stevens, Craig A. Weinberg, Boulder, Colorado, for Appellant.
In this post-dissolution of marriage proceeding, Kent W. Bartlo (father) appeals the order modifying his child support obligation. We reverse the order and remand the cause for the entry of further findings.
The marriage of father and Susan Rosenthal (mother) was dissolved in 1990. A separation agreement, incorporated into the decree of dissolution, provided that mother was to receive custody of the parties' two children, father was to receive parenting time rights, and he was to pay $640 a month in child support.
Thereafter, father moved from Boulder to Nederland, Colorado. He filed a motion with the trial court seeking an increase of parenting time with the minor children to include Sunday overnights (or Monday overnight if Monday were a school holiday).
The parties reached an agreement concerning this issue and signed a stipulation that was approved and entered as an order by the trial court on February 25, 1991. That stipulation and order provided that the children would spend an additional overnight with father at the end of his two weekends per month of parenting time, that he would do all the school year visitation driving, and "that the extra overnights he will have shall not be used as a basis for reducing his child support obligation."
Then, in 1992, mother moved for increased child support asserting that father's income had increased, her own income had decreased, and that these calculations resulted in more than the required 10 percent deviation from the child support schedule set out in § 14-10-115, C.R.S. (1994 Cum. Supp.).
At a hearing before the magistrate, mother contended that the additional overnights that father had received pursuant to the February 1991, order could not be considered in computing his child support obligation. Father contended that, since he was not the movant in the proceeding, his additional overnights should be included in the child support computation. The magistrate determined that, for purposes of mother's motion to increase, the actual overnights should be considered, and ordered father to pay child support, pursuant to a strict interpretation of the guidelines, of $639.97 per month.
Mother appealed the magistrate's order to the district court, renewing her argument that the stipulation precluded consideration of father's additional overnights. After having considered the briefs, exhibits, and applicable law, the court concluded that: "The magistrate erred in disregarding and overriding section 2 of the court's order of February 26, 1991. Therefore, the court's order of May 24, 1993 is hereby modified to conform with the February 1991 stipulation and order, which states that `extra overnights' cannot be used as a basis for reducing respondent's child support obligation. Consequently, respondent's monthly child support obligation is modified to $790."
Father appeals that order, contending that the district court erred in holding the parties to the terms of the 1991 stipulation. Because we disagree with the court's analysis, we reverse the order and remand the cause for the entry of an order and findings.
Section 14-10-112(1), C.R.S. (1994 Cum. Supp.) provides: "[T]he parties may enter into a written separation agreement containing provisions for . . . the custody, support, and parenting time of their children." Section 14-10-112(2), C.R.S. (1994 Cum. Supp.) provides that: "[T]he terms of the separation agreement, except terms providing for the custody, support, and parenting time of children, are binding upon the court unless it finds . . . that the separation agreement is unconscionable."
The statute goes on to provide, in § 14-10-112(6), C.R.S. (1994 Cum. Supp.) that: "Except for terms concerning the support, custody, or parenting time of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides." Finally, § 14-10-112(5), C.R.S. (1987 Repl. Vol. 6B) provides: "Terms of the agreement set forth in the decree may be enforced by all remedies available for the enforcement of a judgment, including contempt, but are no longer enforceable as contract terms."
Here, the original agreement of the parties concerning custody, parenting time, and child support was incorporated in the decree and therefore became an order of the court. The modification of parenting time and the correlative non-modification of child support agreement of February 1991 was also made an order of court and, in our view, constituted an amendment to the original order. Therefore, applying § 14-10-112(5), we conclude that the terms of that February 1991 agreement are no longer enforceable as contract terms because they were made an order of court. Consequently, the parties' arguments concerning contract interpretation are inapposite. Rather, the issue revolves around the appropriateness of the modification of the February 1991 order.
Section 14-10-115(3)(a), C.R.S. (1994 Cum. Supp.) provides that the child support guidelines as set forth in § 14-10-115(10)(b), C.R.S. (1994 Cum. Supp.) should be used as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines when its application would be "inequitable, unjust, or inappropriate," but any such deviation must be accompanied by written findings setting out the reasons for the deviation and setting out the presumed amount under the guidelines without a deviation. Section 14-10-115(3)(a).
Pursuant to C.R.M. 6(e), mother petitioned the district court for review. In its review order, the court quoted directly from C.R.M. 6(e)(4) which provides:
The reviewing judge shall consider a motion for review on the basis of the motions and briefs filed, together with such review of the record as may be necessary. Findings of fact made by the magistrate may not be altered unless clearly erroneous. The reviewing judge may conduct further proceedings, take additional evidence or order a trial de novo in the district court. The reviewing judge shall adopt, reject or modify the initial order or judgment of the magistrate by written order, which order shall be the order or judgment of the district court.
The court then implicitly adopted the findings of fact of the magistrate, but modified the conclusion of the magistrate that the actual overnights that the children spent with father should be included in the computation.
We find no error in the trial court's conclusion that it was not bound by the magistrate's ultimate conclusion regarding the amount of child support to be paid. As we read C.R.M. 6(e)(4), a reviewing court may not alter findings of fact unless they are clearly erroneous, but it may alter ultimate conclusions. Here, the court made no alteration at all in the magistrate's findings of fact concerning the parties' income, expenses, the children's needs, or the terms of the 1991 stipulation and order. Therefore, the order was not erroneous for that reason.
However, we disagree with the district court's implicit assumption that the February 1991 stipulation and order provided a non-modifiable mandate to any later court confronted with the question of modification of child support or parenting time.
In reviewing a magistrate's order according to the standards set out in § 14-10-115(3)(a), a court is free to consider the terms of the previous order as a factor in determining whether rigid adherence to the guidelines is appropriate or whether deviation is warranted. However, even though the previous order is based on a stipulation, the court need not blindly follow that stipulation. As a division of this court held in In re Marriage of Miller, 790 P.2d 890, 892 (Colo.App. 1990): "[T]he parties may not preclude or limit the court's authority concerning child support."
Contrary to mother's contention, we do not view In re Marriage of Channell, 797 P.2d 819 (Colo.App. 1990) as determining that a prior support order based upon the stipulation of the parties is binding in subsequent proceedings. There, the court addressed the validity of a court order determining the age of majority for purposes of emancipation. The court concluded that the trial court was bound by the provisions of a decree addressing this topic pursuant to former SECTION 14-10-122(3), C.R.S. (1987 Repl. Vol. 6B).
Unlike that former section of the statute, the current child support statute makes no provision for entry of a binding decree relative to child support. See SECTION 14-10-122, C.R.S. (1994 Cum. Supp.).
Because the reasons given by the court for its deviation from the guidelines are not legally sufficient and may well rest on an invalid assumption, we must reverse the order and remand the cause for the entry of a child support order consistent with the views expressed in this opinion.
JUDGE RULAND concurs.
JUDGE ROY concurs in part and dissents in part.