In re M.E.R-L.
| Decision Date | 17 December 2020 |
| Docket Number | Court of Appeals No. 20CA0111 |
| Citation | 490 P.3d 1010 |
| Court | Colorado Court of Appeals |
| Parties | IN RE the Parental Responsibilities Concerning M.E.R-L. and D.L.R-L., Children, and Concerning Jeffery E. Lay, Appellant, and Mary A. Rodmon, Appellee, and Concerning El Paso County Child Support Services, Intervenor-Appellee. |
William E. Peters, P.C., William E. Peters, Denver, Colorado, for Appellant
Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellee
Diana K. May, County Attorney, Cori B. Steinberg, Assistant County Attorney, Colorado Springs, Colorado, for Intervenor-Appellee
Opinion by JUDGE TOW
¶ 1 This proceeding concerns the allocation of parental responsibilities (APR) for M.E.R-L. and D.L.R-L. between their parents, Jeffery E. Lay (father) and Mary A. Rodmon (mother). Father appeals the trial court's orders for child support and attorney fees, as well as one of the trial court's evidentiary rulings.
¶ 2 To resolve this appeal, we must consider, as a matter of first impression in Colorado, whether a provision of the Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408, prohibits a trial court from including a parent's veteran's disability benefits in that parent's gross income when calculating a child support obligation. We conclude that the USFSPA does not prohibit including such benefits in a parent's gross income for child support purposes. In addition, we conclude that the trial court did not abuse its discretion by declining to sanction mother for her tardy witness disclosure or by awarding mother a portion of her attorney fees. Therefore, we affirm.
¶ 3 Father and mother are the unmarried parents of M.E.R-L., born in 2016, and D.L.R-L., born in 2018. The parties lived together for fifteen months between 2017 and 2018, during which father agreed to pay the equivalent of mother's salary so she could stay at home with M.E.R-L. When mother learned she was pregnant with D.L.R-L., the parties’ relationship deteriorated, and father moved out of the house. Father then initiated this APR proceeding.
¶ 4 The contested permanent orders hearing occurred over four days between August and October 2019. As relevant to this appeal, the court calculated child support based on mother's $5,547 monthly income and father's $7,504 monthly income, which consisted of his military retirement pay ($4,071 per month) and veteran's disability benefits ($3,433 per month). The calculation resulted in an order for father to pay mother $1,042.31 in monthly child support. The court also ordered father to pay $5,000 of mother's attorney fees due to the disparity of income and father's actions during the proceedings.
¶ 5 We first address father's challenge to the trial court's evidentiary ruling. Father contends that the trial court erred when it allowed mother's witnesses to testify at the permanent orders hearing even though mother had not timely disclosed them. He contends that he was unduly surprised and did not have time to prepare for their testimony. We are not persuaded.
¶ 6 The court has considerable discretion to determine whether to impose sanctions for noncompliance with C.R.C.P. 16.2, including exclusion of witnesses, and we will not disturb its decision absent an abuse of discretion. C.R.C.P. 16.2(j) ; see In re Marriage of Cardona , 321 P.3d 518, 527 (Colo. App. 2010), aff'd on other grounds , 2014 CO 3, 316 P.3d 626. The court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair. In re Marriage of Gibbs , 2019 COA 104, ¶ 8, 446 P.3d 968.
¶ 7 C.R.C.P. 16.2(e)(3) requires parties in a domestic relations case to provide a list of lay and expert witnesses no later than sixty-three days before the contested hearing or final orders. The trial court may modify this time requirement to suit the needs of the particular case. See C.R.C.P. 16.2(a)-(b) (). If a party tries to call an undisclosed witness, the court may exclude the witness absent good cause for the omission. C.R.C.P. 16.2(j).
¶ 8 The trial court entered a case management order that shortened the witness disclosure deadline from sixty-three days to sixty days. The final orders hearing was initially scheduled for July 10, 2019, making May 10, 2019, the witness disclosure deadline.1 Neither party filed witness disclosures by this deadline.
¶ 9 When father pointed out the parties’ mutual noncompliance at a June 11, 2019, status conference, the court again told the parties to file their disclosures. The court further instructed the parties to ensure that the child and family investigator (CFI) appeared at the final orders hearing. Both parties filed witness disclosures on June 18, 2019; father's disclosure listed only the CFI, while mother's listed the three individuals whose testimony is the subject of father's claim on appeal.
¶ 10 At the start of the July 10 hearing, father notified the court that he had discharged the CFI and that he objected to mother's witnesses. The court continued the hearing to August 7, 2019, and again ordered the parties to ensure the CFI's attendance. The court ordered mother's witnesses to return for the hearing because it surmised that the CFI "may want to hear from those people."
¶ 11 Father again objected to mother's witnesses at the start of the August 7 hearing. The court allowed the witnesses to testify.
¶ 12 Father has not demonstrated that the court's decision regarding mother's witnesses was manifestly arbitrary, unreasonable, or unfair. Father knew on June 11 that the court would allow late witness disclosures and knew on July 10 that the court had ordered mother's witnesses to appear at the final orders hearing. Thus, father should not have been surprised when mother called the witnesses on August 7.
¶ 13 Further, while mother did not disclose her witness list sixty days before July 10, she nonetheless provided her disclosures on June 18 per the court's second order. This disclosure, which occurred fifty days before the August 7 hearing, informed father of the witnesses she intended to call and the nature of their testimony. Thus, contrary to father's assertion, father had ample time to prepare for their cross-examination. Indeed, father's allegation that he lacked time to adequately investigate these witnesses is bald and conclusory. He provides no specifics, such as identifying what testimony surprised him or what he would have done differently had he received the disclosures ten days earlier. See In re Marriage of Woolley , 25 P.3d 1284, 1287 (Colo. App. 2001) ().
¶ 14 Finally, despite the discretionary nature of C.R.C.P. 16.2(j), father asks us to apply the principles underlying C.R.C.P. 16, which he asserts mandates the imposition of sanctions for late witness disclosures. To the extent the two rules are different, we deny his request, because C.R.C.P. 16(a) expressly provides that Rule 16 "shall not apply to domestic relations" cases. But in any event, Rule 16 does not require a trial court to exclude an untimely disclosed witness. See Four Strong Winds, Inc. v. Lyngholm , 826 P.2d 414, 417 (Colo. App. 1992) (). In sum, neither Rule 16.2 nor Rule 16 mandates any sanction, let alone the preclusion of witnesses.
¶ 15 In the absence of any demonstrated prejudice flowing from the untimely disclosure, we conclude that the court did not abuse its discretion by permitting the witnesses to testify.
¶ 16 Father also appeals the trial court's calculation of his child support obligation. In particular, he argues that the trial court erred by including his veteran's disability benefits in his gross income. We disagree.
¶ 17 We review child support orders for an abuse of discretion but review de novo the legal standard applied by the court. In re Parental Resps. Concerning N.J.C. , 2019 COA 153M, ¶ 12, 467 P.3d 1209. Further, to the extent our analysis requires statutory interpretation, our review is also de novo. In re Marriage of Paige , 2012 COA 83, ¶ 9, 282 P.3d 506 (citing In re Marriage of Mugge , 66 P.3d 207, 210 (Colo. App. 2003) ).
¶ 18 Child support is calculated by using each parent's actual gross income. § 14-10-115(1)(b)(I), (3)(c), (5)(a)(I), C.R.S. 2020. Gross income includes income "from any source," other than certain listed exceptions that are not applicable here, and specifically includes disability insurance benefits. § 14-10-115(5)(a)(I), (5)(a)(I)(S).
¶ 19 Father argues that his veteran's disability benefits should not be included in his gross income because they are not "insurance benefits" and are not taxable. He further contends that, to the extent section 14-10-115 purports to include these benefits, the statute is preempted by federal law. We address, and reject, each contention in turn.
¶ 20 As a threshold issue, we note that father provides no citation for his assertion that these benefits are "not ‘insurance’ as contemplated by Colorado State law." True, he characterizes veteran's disability benefits as "a federal entitlement pursuant to 38 CFR § 3.750," but that characterization does not inform us whether our legislature intended...
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