Marriage of Payan, In re
| Decision Date | 12 January 1995 |
| Docket Number | No. 94CA0283,94CA0283 |
| Citation | 890 P.2d 264 |
| Parties | In re the MARRIAGE OF Janice PAYAN, Appellant, and Rudolfo Guererro Payan, Appellee. . I |
| Court | Colorado Court of Appeals |
Litvak and Litvak, P.C., Lawrence Litvak, Timothy R.J. Mehrtens, Denver, for appellant.
Polidori, Gerome, Franklin and Jacobson, Peter L. Franklin, Lakewood, for appellee.
Opinion by Judge KAPELKE.
In this dissolution of marriage action, Janice Payan (mother) appeals the trial court's order determining the amount of child support payable by Rudolfo Payan (father). We reverse and remand with directions.
During the marriage, the parties' two children attended a private school. The trial court determined in its order that the cost of the private schooling should not be included in child support because there was no evidence that "the children had a learning disability or other special need which makes private school education required." However, the trial court did grant mother, as sole custodian, exclusive control over a $138,000 educational fund, with leave to use a portion of the fund for pre-college education for the children.
The parties had also retained the services of a nanny during the marriage to care for the children. The trial court made no findings as to child care but concluded that the child support obligation would not include the cost of a nanny.
Mother first contends that the trial court erred in determining that, because the children did not have a learning disability or special educational needs, the cost of private school would not be included in the calculation of child support. We agree.
For the purposes of calculating child support, any reasonable and necessary expenses for attending any special or private elementary or secondary school to meet the "particular educational needs" of the child are to be divided between the parents in proportion to their adjusted gross income. Section 14-10-115(13)(a)(I), C.R.S. (1987 Repl.Vol. 6B).
The trial court interpreted this statute as requiring the presence of a learning disability or other special need before the cost of private school can be awarded as an element of child support. Viewing the statute as a whole, we disagree with this interpretation.
Under § 14-10-115(1)(c), C.R.S. (1987 Repl.Vol. 6B), the trial court must consider, when calculating child support, the standard of living the child would have enjoyed had the marriage not been dissolved. In this context, the means of meeting the "particular educational needs" of a child are not limited to providing private schooling only when a child has a learning disability or otherwise qualifies for a program of special education.
Here, the record indicates that both children had been attending the private school for a number of years before the dissolution of the marriage. That factor may properly be considered by the trial court in determining whether continuing enrollment at the school therefore meets the children's particular educational needs. See, e.g., In re Marriage of Alexander, 231 Ill.App.3d 950, 173 Ill.Dec. 456, 596 N.E.2d 1335 (1992).
Because the trial court employed too narrow a standard in determining that the cost of private school should not be included in child support, the child support award cannot stand and the matter must be remanded with directions that the trial court reconsider the propriety of including the...
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ARTICLE 10
...private school only when a child has a learning disability or otherwise qualifies for a program of special education. In re Payan, 890 P.2d 264 (Colo. App. 1995). Where the mother has sole custody of the three children, and there is a different visitation schedule for each child, in decidin......
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Chapter 9 - § 9.4 • CHILD CARE
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