In re Marriage of Chalat, No. 02CA0734

• Decision Date: 11 March 2004
• Docket Number: No. 02CA2001., No. 02CA0734
• Parties: In re the MARRIAGE of James H. CHALAT, Appellant, and Nancy S. Chalat, n/k/a Nancy S. Shapiro, Appellee.
• Court: Colorado Court of Appeals

94 P.3d 1191

In re the MARRIAGE of James H. CHALAT, Appellant, and

Nancy S. Chalat, n/k/a Nancy S. Shapiro, Appellee.

Nos. 02CA0734, 02CA2001.

Colorado Court of Appeals, Div. IV.

March 11, 2004.

Certiorari Granted July 26, 2004.

Canges, Iwashko, Bethke & Bailey, P.C., James S. Bailey, Denver, Colorado, for Appellant.

Jean E. Dubofsky, P.C., Jean E. Dubofsky, Boulder, Colorado; James J. Keil, Jr., Wheat Ridge, Colorado; Michael P. Zwiebel, Boulder, Colorado, for Appellee.

Opinion by Judge LOEB.

James H. Chalat (father) appeals from two postdecree orders for the payment of child support and postsecondary education expenses for the daughter born of his marriage to Nancy S. Shapiro (mother). We affirm in part, reverse in part, and remand for further proceedings.

The parties' brief marriage was dissolved in 1984, and the decree incorporated a separation agreement, which provided, as pertinent here:

5. Child support

a) Cash payment. [Father] shall pay to [mother], as and for child support, the sum of $500.00 per month ... until the child is twenty-one (21) years of age or emancipated, whichever first occurs.....

c) College Tuition and Expenses. [Father] shall be responsible for payment of the child's tuition, room, board, books and fees for four years at an undergraduate college through child's twenty-second (22nd) birthday, should the child decide to pursue a college degree.

The parties agree that at the time the child commences college they will reassess [father's] child support obligation, taking into consideration [father's] obligation for the child's college expenses.

Mother moved to modify child support in 1993 based upon adoption of the child support guidelines and changed circumstances. The parties reached a written stipulation in 1994, which was approved and made an order of the court. They agreed that father would pay $500 as the base amount of support. They also agreed that they would meet no later than April 30 each year, beginning in 1995, to review their incomes and to calculate support for the prior year; that father would pay, if due, a lump sum of additional retroactive child support by May 15; and that they would mediate prior to seeking court enforcement of the stipulation. They further agreed that all other provisions of the existing orders would remain in full force and effect. Finally, the parties agreed that the Colorado Child Support Guidelines and Colorado law set out the standard for determining child support obligations of each party, and they agreed to those guidelines.

Mother sought another modification in 2001 based upon a substantial and continuing change of circumstances. She also requested enforcement of the 1994 stipulation, seeking payment of child support arrearages due under the agreement since 1995. Father sought a declaratory judgment as to the extent of his obligation for postsecondary education expenses.

After a hearing, the magistrate concluded that father was obligated to pay child support arrearages of $26,836 within twenty-four months; the provision of the 1984 separation agreement for postsecondary education expenses was contractual in nature, nonmodifiable, and reaffirmed in 1994; it was not unreasonable for the child to attend the University of Vermont; father was responsible for the tuition, room, board, books, and fees at an undergraduate college until the child reached the age of twenty-two, when she would become emancipated; and father was required to pay $14,000 of the $21,621.88 attorney fees incurred by mother. The magistrate later corrected some clerical errors, and on review, the district court affirmed.

In a subsequent order, the magistrate rejected father's argument that its prior order was nonmodifiable and ordered father to pay the postsecondary education expenses incurred by his daughter at the University of Pennsylvania, to where she had transferred. The district court affirmed.

I.

Father first contends that the magistrate and district court erred in not limiting his college expense obligation under the statutory child support guidelines. He argues that the court's determination that his obligation was nonmodifiable and contractual was erroneous as a matter of law. We agree.

The pertinent provisions of § 14-10-115(1.5), C.R.S.2003, provide that:

(a) For child support orders entered prior to July 1, 1997, unless a court finds that a child is otherwise emancipated, emancipation occurs and child support terminates when the child attains nineteen years of age unless one or more of the following conditions exist:

(I) The parties agree otherwise in a written stipulation after July 1, 1991. ....

(b)(I) If the court finds that it is appropriate for the parents to contribute to the costs of a program of postsecondary education, then the court shall terminate child support and enter an order requiring both parents to contribute a sum determined to be reasonable for the education expenses of the child, taking into account the resources of each parent and the child. In determining the amount of each parent's contribution to the costs of a program of postsecondary education for a child, the court shall be limited to an amount not to exceed the amount listed under the schedule of basic child support obligations in paragraph (b) of subsection (10) of this section for the number of children receiving postsecondary education.... In no case shall the court issue orders providing for both child support and postsecondary education to be paid for the same time period for the same child regardless of the age of the child. Either parent or the child may move for such an order at any time before the child attains the age of twenty-one years.... The order for postsecondary education support may not extend beyond the earlier of the child's twenty-first birthday or the completion of an undergraduate degree.... If the child resides in the home of one parent while attending school or during periods of time in excess of thirty days when school is not is session, the court may order payments from one parent to the other for room and board until the child attains the age of nineteen....

(c) This subsection (1.5) shall apply to all child support obligations established or modified as a part of any proceeding, including but not limited to articles 5, 6, and 10 of this title and articles 4 and 6 of title 19, C.R.S., prior to July 1, 1997. This subsection (1.5) shall not apply to child support orders established on or after July 1, 1997, which shall be governed by subsection (1.6) of this section.

(c.5) An order for postsecondary education expenses entered between July 1, 1991, and July 1, 1997, may be modified pursuant to this subsection (1.5) to provide for postsecondary education expenses subject to the statutory provisions for determining the amount of a parent's contribution to the costs of postsecondary education, the limitations on the amount of a parent's contribution, and the changes to the definition of postsecondary education consistent with this section as it existed on July 1, 1994. An order for child support entered prior to July 1, 1997, that does not provide for postsecondary education expenses shall not be modified pursuant to this subsection (1.5).

(d) Postsecondary education support may be established or modified in the same manner as child support under this article.

(e) For the purposes of this section, "postsecondary education support" means support for the following expenses associated with attending a college, university, or vocational education program: Tuition, books, and fees.

A division of this court recently addressed some of the provisions concerning the obligation for postsecondary education expenses in In re Marriage of Crowder, 77 P.3d 858 (Colo.App.2003). In Crowder, the parties reached a separation agreement prior to July 1, 1991, in which they agreed to share the costs of four years of undergraduate college education in proportions to be mutually agreed upon by the parties. In 2000, the parties stipulated to adopt the age of emancipation at nineteen and agreed to reduce the amount of support. They did not modify their prior agreement to contribute to college expenses for a four-year education.

Based on the plain language of § 14-10-115(1.5)(c), the division in Crowder concluded that the statute was applicable to the pre-July 1, 1991, separation agreement because the statute created no exemption for separation agreements entered into under and consistent with earlier legislation. The division also concluded that the order for postsecondary education expenses was subject to the limitations set forth in § 14-10-115(1.5)(b)(I). Thus, the case was remanded to the trial court to modify the father's obligation for college costs to reflect that it terminated upon the earlier of the son's twenty-first birthday or his completion of a four-year undergraduate program. The division also concluded that the father's obligation was limited to the presumed monthly child support guideline amount. It did not agree that the father's obligation was defined by § 14-10-115(1.5)(e) to be only tuition, books, and fees because the father failed to request that the trial court so limit his obligation.

Seeking to uphold the magistrate's order, mother argues that the decision in Crowder is not dispositive here because the division there erroneously relied solely on § 14-10-115(1.5)(c), without considering the provisions of § 14-10-115(1.5)(c.5) and (d). She argues that the more specific § 14-10-115(1.5)(c.5) controls over § 14-10-115(1.5)(c), and she maintains that the legislative history shows that the General Assembly intended to make orders entered prior to July 1, 1991, nonmodifiable. We disagree and conclude that § 14-10-115(1.5)(c) and (c.5) can and should be harmonized.

A.

Initially, we reject the magistrate's conclusion that the terms of the parties' pre-July 1, 1991, separation agreement were binding on the court because they were contractual and...