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In re Marriage of Tooker

Court of Appeals of Colorado, Seventh Division

May 23, 2019

In re the Marriage of Jennifer Ann Tooker, Appellant, and Mark Glen Tooker, Appellee, and Concerning El Paso County Child Support Services, Intervenor.

          El Paso County District Court No. 14DR3131 Honorable Erin Sokol, Judge

          Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant No Appearance for Appellee.

          Marrison Family Law, LLC, Mikayla Shearer, Colorado Springs, Colorado, for Intervenor.

          OPINION

          DUNN JUDGE.

         ¶ 1 The Post-9/11 Veterans Educational Assistance Act of 2008, referred to here as the GI Bill, 38 U.S.C. §§ 3301-3327 (2018), provides eligible veterans with education benefits such as tuition assistance, a stipend for books and supplies, and a monthly housing allowance, 38 U.S.C. § 3313(a), (c)(1) (2018). Mark Glen Tooker, a retired veteran, took advantage of the GI Bill's benefits to attend college.

         ¶ 2 In this post-dissolution of marriage dispute, Mark's former spouse, Jennifer Ann Tooker, challenges the district court's order modifying Mark's spousal maintenance and child support obligations.[1] More specifically, she contends the district court erred in not (1) including the tuition assistance and book stipend Mark received under the GI Bill as income for purposes of calculating maintenance and child support; (2) including Mark's potential timber income in calculating maintenance and child support; and (3) making sufficient findings to modify Mark's maintenance obligation. Because we disagree with these contentions, we affirm.

         I. Background

         ¶ 3 The district court entered a decree dissolving the parties' twenty-year marriage in 2015. At that time, Mark and Jennifer had two biological children. Jennifer also had a daughter, A.C.J.T., who was not Mark's biological child.

         ¶ 4 As part of the dissolution decree, and based on the parties' agreed parenting plan, the district court excluded A.C.J.T. from the child support calculation but ordered Mark to pay child support for the Tookers' two biological children, as well as maintenance.

         ¶ 5 Within the next few years, Jennifer and Mark each sought to modify Mark's monthly obligations. For her part, Jennifer asserted that Mark was A.C.J.T.'s legal parent and moved to modify the child support obligation to include A.C.J.T.[2] She also moved to modify maintenance, arguing that circumstances had changed due to a "more than 10%" decrease in her income.

         ¶ 6 For his part, Mark sought modification or termination of maintenance based on other changed circumstances, including his reduced income (due to his military retirement) and, in his view, Jennifer's "dramatically increased income."

         ¶ 7 While the modification motions were pending, the juvenile court, in a separate proceeding not contested here, determined that Mark was A.C.J.T.'s legal father.

         ¶ 8 Not long after, the district court held an evidentiary hearing on the parties' motions to modify maintenance and Jennifer's motion to modify child support. It declined to modify Mark's maintenance obligation and, as relevant here, ordered Mark to pay $563 a month in child support for A.C.J.T. When calculating Mark's income, the district court included his military retirement; forty hours per week of imputed employment income; and, from the GI Bill, Mark's tuition assistance, book stipend, and housing allowance.

         ¶ 9 After the court entered the modification order, Mark sought reconsideration under C.R.C.P. 59. With respect to the GI Bill benefits, Mark argued that the tuition assistance and book stipend benefits should not be included as income for purposes of child support and maintenance. But he acknowledged that "the housing allowance stipend paid directly to [him] should be included." The district court agreed, finding that the tuition assistance payment was "made directly to [Mark's] educational institution" and he was not free to use this money on daily living expenses. The court similarly found the GI Bill allotted the book stipend for Mark's "educational books" and he could not use the stipend for discretionary expenses.

         ¶ 10 Given this, the district court excluded the GI Bill tuition assistance and book stipend benefits from Mark's income. It then recalculated his income using his military retirement, the GI Bill housing allowance, and forty hours per week of imputed employment income. The court concluded that Mark's monthly income was $3749. Based on the recalculated income, the district court ordered Mark to pay $553 per month in child support. And applying "the statutory formula" for maintenance to Mark's ...


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