In re the Marriage of Cheryl N. Ross–ooley

• Citation: 251 P.3d 1221
• Decision Date: 10 November 2010
• Docket Number: No. 09CA2188.,09CA2188.
• Parties: In re the MARRIAGE OF Cheryl N. ROSS–OOLEY, Appellant,andKenneth L. OOLEY, Appellee.
• Court: Colorado Court of Appeals

251 P.3d 1221

In re the MARRIAGE OF Cheryl N. ROSS–OOLEY, Appellant,andKenneth L. OOLEY, Appellee.

No. 09CA2188.

Colorado Court of Appeals, Div. I.

Nov. 10, 2010.

Catherine Burkey, Grand Junction, Colorado, for Appellant.No Appearance for Appellee.Opinion by Judge NIETO.^*

In this dissolution of marriage action, Cheryl N. Ross–Ooley (wife) appeals the trial court's order, entered after remand from this court, determining her income and denying her request for maintenance and attorney fees. The primary issue on appeal is whether the trial court erred when it clarified on remand that it had calculated wife's monthly income based on her actual part-time wages and the Social Security survivor benefits she receives on her son's behalf as a result of his father's death. We conclude that the trial court erroneously included the son's Social Security benefits in its determination of wife's income, and therefore we reverse and remand for further proceedings.

I. Background

Wife, who was a widow with two sons from her prior marriage, married Kenneth L. Ooley (husband) in 1996. They had a daughter in 2000. The parties terminated their marriage in 2008.

Wife appealed the trial court's permanent orders, specifically contesting the award of parental responsibility for their daughter, the property division, the court's determination of her income, and the denial of maintenance, attorney fees, and various costs. In In re Marriage of Ross–Ooley, 2009 WL 482233 (Colo.App. No. 08CA0989, Feb. 26, 2009) (not published pursuant to C.A.R. 35(f)), a division of this court affirmed the award of parental responsibility and the property division, but reversed the determination of wife's income. The division concluded that the amount of income attributed to wife, which significantly exceeded her part-time earnings, did not equate to a full-time salary at the hourly wage she then earned. The division noted that the trial court did not address that discrepancy or make findings concerning wife's ability to find full-time work. Nor did the court include findings necessary to a determination that wife, who planned to resume her education, was voluntarily underemployed. The division held that these issues needed clarification and remanded for that purpose. The division further observed that the issues raised concerning the denial of maintenance, attorney fees, and various costs necessarily depended upon wife's financial resources and would, therefore, have to be revisited on remand.

After receiving this court's mandate, the trial court declined to hold a hearing and entered an order clarifying the “imputed income” issue. It explained that it had not imputed income to wife, but rather, “simply used her reported total monthly income of $2,712.” The court stated that it considered section 14–10–115(5)(a)(I)(P), C.R.S.2010, which includes Social Security benefits in the calculation of a parent's income for purposes of child support, and that it added wife's reported monthly employment income of $1402 to the monthly Social Security benefits of $1310 she reported receiving for her son, which equaled $2712. It again found that wife earned a gross monthly income of $2712 for purposes of calculating child support.

Wife moved for reconsideration of the clarification order, arguing that the court erred by including her son's Social Security benefits in her income and by ignoring the other issues to be revisited on remand, including the issue of voluntary underemployment and the denial of maintenance, attorney fees, and other various costs. The court denied wife's motion for reconsideration, finding that it was not appropriate to impute income to her because she was not shirking a child support obligation and reiterating that the Social Security benefits she received on behalf of her son should be included in her monthly income. The court further found that, based on wife's financial resources, its denial of maintenance remained appropriate. It also concluded that, in view of the debt allocated to husband, wife should pay the costs of the custody evaluation and her own attorney fees.

II. Social Security Benefits

As the trial court noted in its orders on remand, section 14–10–115(5)(a)(I)(P) includes Social Security benefits in a parent's gross income for purposes of child support. That statutory section provides that a parent's gross income includes, but is not limited to, “Social security benefits, including social security benefits actually received by a parent as a result of the disability of that parent or as the result of the death of the minor child's stepparent....” That section goes on to exclude from a parent's income “social security benefits received by a minor child or on behalf of a minor child as a result of the death or disability of a stepparent of the child.”

Section 14–10–115(5)(a)(II)(D), C.R.S.2010, provides, “Social security benefits received by the minor children, or on behalf of the minor children, as a result of the death or disability of a stepparent are not to be included as income for the minor children for the determination of child support.”

Section 14–10–115(11)(c), C.R.S.2010, also provides:

In cases where the custodial parent receives periodic disability benefits granted by the federal “Old-age, Survivors, and Disability Insurance Act” on behalf of dependent children due to the disability of the noncustodial parent or receives employer-paid retirement benefits from the federal government on behalf of dependent children due to the retirement of the noncustodial parent, the noncustodial parent's share of the total child support obligation ... shall be reduced in an amount equal to the amount of the benefits.

These provisions are silent with respect to the situation here in which wife receives benefits on behalf of the son she had with her deceased first husband and for whom husband owed no duty of support.

These statutes state that, for purposes of child support, Social Security benefits are generally included in a parent's income, and then they enumerate certain benefits as included in income and others that are excluded from income. However, as this case illustrates, the child support statutes do not specifically address how to treat every type of Social Security benefit.

Section 14–10–115(5)(a)(I)(P) could be read to include as income all Social Security benefits received by a parent except for those specifically excluded. However, such a reading would not be consistent with the division's interpretation of the statute in In re Marriage of Anthony–Guillar, 207 P.3d 934 (Colo.App.2009) (holding that Social Security disability payments received by a mother on behalf of a child because of mother's disability were not income to her). Also, to so read the statute in this case would result in treating the Social Security benefit received on behalf of the child differently from similar types of benefits that are addressed in the child support statutes. See § 14–10–115(5)(a)(I)(P) (benefits received by or on behalf of a child as a result of the death or disability of a stepparent are excluded from a parent's income); § 14–10–115(5)(a)(II)(D) (benefits received by or on behalf of a child as a result of the death or disability of a stepparent are not considered income of the child for the determination of child support). We reject this reading of the statute for the reasons stated below.

We consider In re Marriage of Anthony–Guillar instructive. There, the custodial parent was receiving disability benefits on behalf of her child due to the parent's own disability. The division noted that the child support guidelines expressly included the parent's own disability payments in the calculation of the parent's income, but did not address...