Marriage of Van Inwegen, In re
| Decision Date | 26 May 1988 |
| Docket Number | No. 87CA0524,87CA0524 |
| Citation | 757 P.2d 1118 |
| Parties | In re the MARRIAGE OF Kathleen M. VAN INWEGEN, Appellee, and Cornelius Van Inwegen, Appellant. . I |
| Court | Colorado Court of Appeals |
Hecox, Tolley, Keene & Beltz, P.C., W. Thomas Beltz, Cynthia Mace Dude, Colorado Springs, for appellee.
Trott, Kunstle and Hughes, James A. Reed, Colorado Springs, for appellant.
Cornelius Van Inwegen (father) appeals the trial court order increasing his child support obligation. His major contention is that the trial court erred in ruling that the General Assembly intended basic child support obligations be ten percent of the combined gross income of the parents when their income exceeds the guideline schedule contained in § 14-10-115, C.R.S. . We agree and therefore reverse.
The parties' marriage was dissolved in 1979 and father was ordered to pay $150 per month child support for the parties' daughter. In 1986 Kathleen M. Van Inwegen (mother) filed a motion for modification of child support alleging a significant change in financial circumstances of the parties and increased needs of the child.
Mother's financial affidavit showed a cost of $912.50 per month to support their daughter, but, in her testimony, she stated that because of possible private school costs and other items it would take $1500 per month to support the child.
The trial court determined that there was a substantial and continuing financial change of circumstances requiring modification of the child support. It further determined that father's gross earning capacity was $10,000 per month and mother's gross earning capacity was $2187.50 per month. It made no determination regarding the needs of the child.
The trial court concluded that the child support guideline schedule set out in § 14-10-115 was fair and reasonable, and that there was no cause to deviate from it. However, the combined gross income of the parties was beyond the upper limit of that schedule. Nevertheless, the court noted that for parental income at the high end of the scale ($8400 to $10,000) the schedule set ten percent ($1000) of that income as being a proper support award for one child. From this fact, it concluded that it was the intent of the General Assembly that parents with a combined gross income above the schedule should also be obligated to pay ten percent of their combined gross income for the support of one child. It set the total child support obligation at $1215 based on this extrapolation of the guideline schedule, and ordered father to pay $995 per month, based on his proportionate share of the combined gross income.
Father asserts the trial court erred by mechanically extrapolating the guideline schedule in § 14-10-115 as a means of setting proper child support here. We conclude it was not the General Assembly's intent that trial courts mechanically extrapolate from the guideline schedule.
Section 14-10-115 provides in part:
....
Construction of a statute is a question of law. Colorado Division of Employment v. Parkview Episcopal Hospital, 725 P.2d 787 (Colo.1986). In construing statutes, a court must ascertain and give effect to the intent of the General Assembly. People v. Guenther, 740 P.2d 971 (Colo.1987). To discern the General Assembly's intent, a court should look first to the language of the statute itself, giving the statutory terms their commonly accepted and understood meaning. People v. Guenther, supra. Charnes v. Lobato, 743 P.2d 27 (Colo.1987). The word "shall" involves a mandatory connotation and hence, is the antithesis of discretion or choice. People v. Guenther, supra.
The mandatory language in § 14-10-115(3)(a) & (10)(a) regarding the application of the guideline schedule indicates that it was the intent of the General Assembly to require the trial court to presume, unless rebutted, that child support obligations must be set in the amount specified by the schedule. However, the statute contains exceptions to this mandatory application of the presumptive amounts in the schedule.
One of these exceptions applies to this case. The trial court may use its judicial discretion in circumstances where combined adjusted gross income exceeds the uppermost levels of the guideline. Section 14-10-115(10)(a)(II). However, the trial court's discretion is limited in these circumstances by § 14-10-115(3)(a) which provides that the child support guideline shall be used as a rebuttable presumption in any action to establish or modify child support. We conclude there is a rebuttable presumption that $1,000 is the minimum presumptive amount of child support for one child when the parental combined income exceeds $10,000. However, the trial court may choose to exercise its discretion to set a different amount.
We conclude that it was the intent of the General Assembly that extrapolation from the guideline schedule...
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