In re Marriage of Tooker

• Decision Date: 23 May 2019
• Docket Number: Court of Appeals No. 18CA0589
• Citation: 444 P.3d 856
• Parties: IN RE the MARRIAGE OF Jennifer Ann TOOKER, Appellant, and Mark Glen Tooker, Appellee, and Concerning El Paso County Child Support Services, Intervenor.
• Court: Colorado Court of Appeals

444 P.3d 856

IN RE the MARRIAGE OF Jennifer Ann TOOKER, Appellant,

and

Mark Glen Tooker, Appellee,

and Concerning El Paso County Child Support Services, Intervenor.

Court of Appeals No. 18CA0589

Colorado Court of Appeals, Division VII.

Announced May 23, 2019

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 by JUDGE DUNN

¶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 recalculated income, the district court found that he owed "$ 0.00" and therefore terminated his maintenance obligation.

II. The GI Bill Benefits

¶11 Jennifer contends the district court erred in excluding Mark’s GI Bill tuition assistance and book stipend benefits from his income for purposes of calculating maintenance and child support. We are not persuaded.

¶12 We review maintenance and child support orders for an abuse of discretion. See In re Marriage of Thorstad , 2019 COA 13, ¶ 27, 434 P.3d 165 (maintenance modification); In re Marriage of Davis , 252 P.3d 530, 533 (Colo. App. 2011) (child support modification). But we review de novo whether the court applied the correct legal standard. See Thorstad , ¶ 27 (maintenance modification); Davis , 252 P.3d at 533 (child support modification).

¶13 A district court must determine the parties’ gross incomes before calculating maintenance and child support. See § 14-10-114(3)(a)(I)(A), C.R.S. 2018 (maintenance); § 14-10-115(1)(b)(I), (5)(a), C.R.S. 2018 (child support). A party’s gross income for this purpose means "income from any source." § 14-10-114(8)(c)(I) ; § 14-10-115(5)(a)(I).

¶14 The statutes, however, say nothing about GI Bill benefits, neither including them in the definition of gross income, see § 14-10-114(8)(c)(I) (nonexclusive list of income included in definition of gross income for maintenance); § 14-10-115(5)(a)(I) (same for child support), nor excluding them from the definition, see § 14-10-114(8)(c)(II) (excluding certain income from gross income for purposes of maintenance); § 14-10-115(5)(a)(II) (same for purposes of child support).

¶15 And Jennifer points us to no authority — nor have we found any — that has included (or excluded) GI Bill tuition assistance and book stipend benefits in a former spouse’s gross income for purposes of maintenance and child support. But courts have considered whether payments made for a spouse’s benefit are includable as gross income under the maintenance and child support statutes when those payments are not currently available for the spouse’s general living expenses. See, e.g. , Davis , 252 P.3d at 535 ; In re Marriage of Mugge , 66 P.3d 207, 210 (Colo. App. 2003).

¶16 Mugge is particularly instructive. There, the father retired in exchange for an employer contribution to his pension plan. 66 P.3d at 209. On his retirement, the father elected not to take a distribution but to roll his pension into another plan. Id. The mother moved to modify the father’s child support obligation, arguing the employer’s pension contribution should be included as gross income for child support purposes. Id. at 209-10. The Mugge division disagreed. Id. at 211. It recognized that the father did not have the option of directly receiving the contribution "as wages." Id. And it thus concluded that, before actual distribution to the father is made, employer contributions to his retirement account or pension plan do not "constitute gross income" for child support purposes. Id.

¶17 Some years later, the Davis division considered whether an employer’s contributions to the husband’s 401(k) plan and health insurance plans should be included in his income for child support purposes. 252 P.3d at 534-35. The division concluded that the district court did not err in excluding the employer’s contributions from the husband’s gross income. Id. at 535. In reaching this conclusion, it found that, as in Mugge , the husband "did not have the option to take [the employer’s] contributions as wages and use them for general living expenses." Id. ; see also In re Marriage of Mellott , 32 Kan.App.2d 1031, 93 P.3d 1219, 1221-22 (2004) (concluding that employer tuition reimbursements were not income under Kansas’s child support guidelines because the tuition reimbursements did not reduce the father’s living expenses).

¶18 The principle that emerges from these cases is that, to be included as gross income for purposes of maintenance and child support, benefits received by an individual (if not otherwise excluded from the definition of gross income in the maintenance and child support statutes) must be available for the individual’s discretionary use or to reduce daily living expenses. With this in mind, we turn to the tuition assistance and book stipend benefits Mark received under the GI Bill.

¶19 Jennifer does not dispute that Mark’s tuition assistance benefit was not paid to him but, rather, was paid directly to his college. A letter from the Department of Veterans Affairs introduced at the modification hearing confirmed that the Department "issued a tuition and fees payment to [Mark’s] school[ ] on [his] behalf." And nothing in the record shows that Mark had any ability to receive the GI Bill tuition assistance benefit personally or use it for general living or other discretionary expenses.

¶20 Because the tuition assistance benefit was not available to Mark for general living expenses and would in no discernable way assist him in paying maintenance or child support, we conclude that the district court properly excluded the tuition assistance benefit as gross income for purposes of calculating maintenance and child support. See Davis , 252 P.3d at 535 ; Mugge , 66 P.3d at 211 ; see also Mellott , 93 P.3d at 1221-22.

¶21 We reach the same conclusion with respect to the book stipend. Though the relatively modest stipend appears to be paid directly to Mark, the record supports the district court’s finding that it was ...