In re Marriage of Ikeler

• Decision Date: 24 August 2006
• Docket Number: No. 05CA0649.,05CA0649.
• Citation: 148 P.3d 347
• Parties: In re the MARRIAGE OF Melodee IKELER, n/k/a Melodee Crawford, Appellant and Cross-Appellee, and Douglas E. Ikeler, Appellee and Cross-Appellant.
• Court: Colorado Court of Appeals

148 P.3d 347

In re the MARRIAGE OF Melodee IKELER, n/k/a Melodee Crawford, Appellant and Cross-Appellee, and

Douglas E. Ikeler, Appellee and Cross-Appellant.

No. 05CA0649.

Colorado Court of Appeals, Div. A.

August 24, 2006.

Certiorari Granted December 18, 2006.

COPYRIGHT MATERIAL OMITTED

Willoughby Law Firm, LLC, John L. Eckelberry, Denver, Colorado, for Appellant and Cross-Appellee.

Loper & Virnich, P.C., Sean H. Virnich, Denver, Colorado, for Appellee and Cross-Appellant

Opinion by Judge PLANK.^*

Melodee Ikeler (wife) and Douglas E. Ikeler (husband) separately appeal from the permanent dissolution orders. We affirm in part, reverse in part, and remand with directions.

Before husband and wife were married, they entered into an antenuptial agreement (the marital agreement). As pertinent here, the parties agreed that each would pay his or her own attorney fees in any dissolution or separation proceeding.

Fifteen months after the marriage, the parties had triplets. Two years later, wife petitioned to dissolve the marriage.

Husband moved for summary judgment on the issue of attorney fees, asserting the marital agreement barred any attorney fee award. The court denied the motion.

After a hearing at which husband represented himself, the court issued permanent orders. As relevant to the issues here, the trial court allowed wife to use a vehicle for six years that was husband's separate property; designated wife to be the primary custodian of the children; ordered husband to pay wife monthly child support in the amount of $6620, including a calculation that wife would pay for child care in the amount of $3000 per month; and awarded wife attorney fees. Both parties appeal.

I. Vehicle

Both parties contend the court erred by allowing wife to use for six years a vehicle that is husband's separate property. We conclude that on remand the duration of wife's use of the vehicle must be reconsidered or other provisions must be made for her transportation needs.

A.

Wife asserts the court erred by not conveying to her any definable or ascertainable attributes of ownership in the vehicle. We disagree.

Pursuant to § 14-10-113(1), C.R.S. 2005, "the court shall set apart to each spouse his or her property." In re Marriage of Sarvis, 695 P.2d 772 (Colo.App.1984). Thus, the statute mandates that separate property remain separate. In re Marriage of Campbell, 43 Colo.App. 72, 599 P.2d 275 (1979).

Here, there is no dispute that the vehicle is husband's separate property. Thus, the court could not have conveyed any ownership attributes of that vehicle to wife. See In re Marriage of Campbell, supra. Wife's citations to In re Marriage of Paul, 821 P.2d 925 (Colo.App.1991), and In re Marriage of Gehret, 41 Colo.App. 162, 580 P.2d 1275 (1978), do not compel a contrary conclusion, as in each case, the issue was the division of marital, not separate, property. Wife has not shown the court erred when it did not give her any ownership interest in the vehicle.

However, notwithstanding the fact that the vehicle is husband's separate property, the court could allow wife to use it because husband could waive or intentionally relinquish the right to sole ownership of his separate property.

The court's finding here that husband consented or waived his objection to wife's use of his separate property is supported by the record. The court asked husband whether he would prefer to pay wife a lump sum to purchase a vehicle or allow her to use the vehicle at issue here. Husband testified he could not afford to give wife a lump sum to purchase a vehicle and agreed she could borrow the vehicle for one year or some amount of time. Whether a waiver occurred is a question of fact, and a trial court's resolution of the issue of waiver will not be reversed on appeal unless it is clearly erroneous. In re Marriage of Robbins, 8 P.3d 625 (Colo.App. 2000). The court acted properly by allowing wife to use the vehicle without conferring any rights of ownership to her.

B.

Husband contends the court erred by awarding use of the vehicle to wife for six years. We agree.

Husband testified wife could borrow the vehicle for "a year or some amount of time." The record shows that husband did not consent to wife's using the vehicle for six years. Thus, although the court could properly have allowed wife to use the vehicle for one year, it could not do so for six years.

We recognize that the court was attempting to address the transportation needs of wife and the triplets while simultaneously accommodating husband's request that he not be ordered to pay a lump sum to wife to allow her to purchase a vehicle. Regardless, remand is required for the court to consider whether wife should receive money to purchase a vehicle in which she may transport three toddlers or whether husband will consent to wife's use of his automobile for a longer period of time.

C.

Husband argues that because the trial court awarded the use of the vehicle to wife in lieu of additional maintenance, the court should have characterized the loan payments husband was making on the vehicle as maintenance. However, in light of our conclusion that the court erred in allowing wife to use the vehicle for six years, we need not reach this issue. If, on remand, the court enters a similar order because husband consents to wife's using the vehicle for a longer period of time, the trial court should address this issue.

II. Child Support

We agree with husband that certain aspects of the child support award must be reconsidered on remand.

A.

Husband asserts the court erred by including wife's child care expenses in the calculation of child support because those expenses were not incurred due to employment, job search, or education. Although we disagree with husband's assertion that the court was not allowed to include child care, we agree that the findings are inadequate to support the order.

Pursuant to § 14-10-115(11)(a), C.R.S. 2005, "[n]et child care costs incurred on behalf of the children due to employment or job search or the education of either parent shall be added to the basic obligation and shall be divided between the parents in proportion to their adjusted gross incomes."

Wife testified that taking care of the three-year-old triplets was a full-time job. Wife's counsel indicated wife wanted to take care of the children fulltime until they were in first grade, which would occur in fall 2007. Thus, the evidence shows wife was not employed or seeking employment. The trial court found that wife was not working outside the home.

Wife argues the court allowed child care costs as part of the child support calculator because she was in school. The record does not support that argument. Although wife testified she wanted to attend a one-year continuing education program in public speaking, she did not indicate when she would begin that program. The logical inference to draw from wife's counsel's statement is that wife did not intend to attend that program until 2007. Thus, because wife was not working, seeking employment, or attending school, the child care costs ordered by the court in calculating child support does not fall within the scope of § 14-10-115(11)(a).

However, even though the court could not award child care under § 14-10-115(11)(a), the court could deviate from the child support guidelines if their application would be inequitable, unjust, or inappropriate, such as when there are extraordinary costs associated with parenting time. See § 14-10-115(3)(a), C.R.S.2005; In re Marriage of Elmer, 936 P.2d 617 (Colo.App.1997); In re Marriage of Kluver, 771 P.2d 34 (Colo. App.1989) (trial court may require one parent to assist in paying certain costs for a child not authorized by statute if it finds that the application of the guidelines would be inequitable and specifies the reason for the deviation). The court also may deviate from the guidelines even if no enumerated factor exists. Section 14-10-115(3)(a). Any such deviation shall be accompanied by specific factual findings by the court specifying the reasons for the deviation. In re Marriage of English, 757 P.2d 1130 (Colo.App.1988).

Here, the parties had triplets, who would be three years old in April 2005. Wife testified that she was unable to take them with her to the grocery store, to therapy, go on other errands and thus it was reasonable for her to have babysitters for twenty to twenty-five hours per week to allow her to accomplish these tasks. Taking care of three-year-old triplets may be extraordinary circumstances justifying a deviation from the guidelines.

However, the trial court could not deviate from the guidelines unless it made specific factual findings justifying such a deviation. Because it did not do so, it erred. See In re Marriage of English, supra. On remand, the trial court is directed to determine whether child care costs are appropriate and to make findings to support any deviation from the guidelines. See In re Marriage of Payan, 890 P.2d 264 (Colo.App.1995).

Our conclusion is not altered by husband's citation to In re Marriage of Mackey, 940 P.2d 1112 (Colo.App.1997). There, a division of this court held "it was error for the trial court to offset imputed income with imputed child care costs" because "requir[ing] the obligor to be responsible for costs that are not actually incurred and which are speculative in nature seems patently unfair." In re Marriage of Mackey, supra, 940 P.2d at 1115 (quoting Colorado Child Support Commission Report 15 (1991)). Here, the undisputed testimony showed that wife was actually incurring child care costs. Thus, Mackey is inapplicable.

B.

Husband asserts the trial court erred by ordering $3000 monthly for child care expense as part of the child support calculation because that amount was unsupported by the evidence. We reach this argument because an appropriate amount of child care will be at issue on remand. We agree with husband that the order is unsupported by the...