In re Marriage Heine (Colorado 2018)

2018COA154 (Co. Ct. App. 2018)
November 2018

When parents voluntarily agree to a change in custody, the statute allows support to be modified back to the date of the change. A court has discretion to terminate or modify support for the obligor and establish support for the new obligor. The parents in this case voluntarily changed custody of their children several times. This case came about because of the latest change. The father had both children and then the parents agreed to each take a child. In the hearing to modify support, the court ordered the mother to pay support for the period of time that father had both children, then calculated the new shared custody support. To calculate support, the court imputed income to the mother because she was unemployed. The mother appealed. The Court of Appeals agreed with the mother that the lower court improperly imputed income. The Court found the order didn’t specifically find her underemployed or avoiding her child support obligation. The Court upheld the award of retroactive support. The court acknowledged that generally the effective date of a modified child support order is the filing date of the modification petition. However, the statute provides that if there has been a voluntary change in physical care, the date of the change in care is the effective date. The statute also gives courts discretion to modify the support of either parent, regardless of their status as obligor or obligee.