In re Marriage of Garrett

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[Copyrighted Material Omitted]

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          Boulder County District Court No. 08DR179, Honorable Andrew R. Macdonald, Judge

          Alexandre Ford Garrett, Pro Se

          Daniel Meyer Heine, Pro Se

         OPINION

         TAUBMAN, JUDGE.

         [¶ 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

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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 ...