Marriage of Miller, In re

• Citation: 790 P.2d 890
• Decision Date: 01 March 1990
• Docket Number: No. 89CA0485,89CA0485
• Parties: In re the MARRIAGE OF Sally Jo MILLER, a/k/a Sally Jo Walker, Appellee, and Edgar Miller, Appellant. . II
• Court: Colorado Court of Appeals

Page 890

790 P.2d 890

In re the MARRIAGE OF Sally Jo MILLER, a/k/a Sally Jo Walker, Appellee,

and

Edgar Miller, Appellant.

No. 89CA0485.

Colorado Court of Appeals,

Div. II.

March 1, 1990.

Bruno, Bruno & Colin, P.C., David J. Bruno and Josh A. Marks, Lakewood, for appellee.

Jana Purdy, Denver, for appellant.

Opinion by Judge MARQUEZ.

Edgar Miller (father) appeals from an order of the trial court denying his motion to modify child support. We reverse and remand for further proceedings.

Pursuant to a stipulation of the parties in December 1986, custody of one of the minor children of the parties was changed from Sally Jo Miller (mother) to the father. As part of the agreement which was approved by the court, father waived "any child support or maintenance for said minor child and agree[d] that he [would] seek no such child support except upon change of circumstances as governed by Colorado law."

In June 1988, however, father filed a motion to modify child support and to compel contribution by mother toward the child's anticipated college education expenses. The trial court denied this motion because it determined, in part, that the parties had entered into the waiver of child support as an exchange for a stipulation of custody of the child.

The court also found that there had not occurred a change of circumstances with respect to either the needs of the child or the financial abilities of either party. To the contrary, it found that the only change which had occurred was enactment of the child support guidelines. It concluded that such change in legislation, absent a change in either the needs of the child or the ability of the parties to contribute to support did not constitute a sufficient change in circumstances so as to justify a modification of the child support order.

The parties do not dispute that the guidelines apply to this action. See §§ 14-10-115(3)(a) and (17), C.R.S. (1987 Repl.Vol. 6B). Nor is it contested that the child support guidelines created a rebuttable presumption that a change of circumstances existed here.

On appeal, father asserts that the parties cannot agree that child support will never be modified; that an agreement by the parties is not, in and of itself, a sufficient reason for deviation from the guidelines; and that, since the duty of support is owed to the child, the court erred in refusing to apply the guidelines. Father also argues that the presumptive amount of support was not overcome in this case. In the alternative, he argues that the findings of the court were insufficient to support a deviation.

Without addressing the continued validity of the waiver of child support, the child's mother responds that deviation from the guidelines was supported by the undisputed evidence, was within the court's discretion, and was supported by its findings. We agree with father's contentions.

Statutory provisions may not be modified by agreement of the parties if doing so would violate a public policy expressed in the statute or would affect the rights of the child which the statute was designed to protect. In re Marriage of Johnson, 42 Colo.App. 198, 591 P.2d 1043 (1979). The law and policy of this state is that the needs of the children are of paramount importance and cannot be altered by the parties. Wright v. Wright, 182 Colo. 425, 514 P.2d 73 (1973); see § 14-10-112(6), C.R.S. (1987 Repl.Vol. 6B). A child has a legal right to support from both parents and both parents have a duty to provide reasonable support for the child. Abrams v. Connolly, 781 P.2d 651 (Colo.1989).

This public policy is codified in the child support guidelines. One of the express purposes of the child support guidelines is "[t]o establish as state policy an adequate standard of support for children, subject to the ability of parents to pay." Section 14-10-115(3)(c)(I), C.R.S. (1987 Repl.Vol. 6B). In addition, the guidelines are designed to calculate "child support based upon the parents' combined adjusted gross income estimated to have been allocated to the child if the parents and children were living in an intact household." Section 14-10-115(4)(a), C.R.S. (1987 Repl.Vol. 6B).

The provisions of § 14-10-122, C.R.S. (1987 Repl.Vol. 6B), requiring for modification a showing of changed circumstances that are substantial and continuing, must be considered in conjunction with the guidelines, which include specific language regarding the review and approval of agreements for child support. As a matter of law, a trial court may not initially refuse to apply the child support guidelines. In re Marriage of Greenblatt, 789 P.2d 489 (Colo.App.1990).

Section 14-10-115(3)(a), C.R.S. (1987 Repl.Vol. 6B) provides in pertinent part:

"In any action to ... modify child support ... the child support guideline ... shall be used as a rebuttable presumption for the ... modification of the amount of child support. Courts may deviate from the guideline where its application would be inequitable. Any such deviation shall be accompanied by written or oral findings ... specifying the reasons for the deviation." (emphasis added)

Section 14-10-115(3)(b)(I), C.R.S. (1987 Repl.Vol. 6B) provides:

"Stipulations presented to the...