People ex rel. Cerda v. Walker, 00CA1175.

• Decision Date: 02 August 2001
• Docket Number: No. 00CA1175.,00CA1175.
• Parties: PEOPLE of the State of Colorado ex rel. Lorraine M. CERDA, Appellee, v. Tim J. WALKER, Appellant.
• Court: Colorado Court of Appeals

32 P.3d 628

PEOPLE of the State of Colorado ex rel. Lorraine M. CERDA, Appellee,
v.
Tim J. WALKER, Appellant

No. 00CA1175.

Colorado Court of Appeals, Div. V.

August 2, 2001.

Stuart M. Jones, Grand Junction, CO, for Appellee.

Feather Legal Services, P.C., Gerald B. Feather, Grand Junction, CO, for Appellant.

Opinion by Judge NIETO.

Tim J. Walker (father) appeals the district court's order affirming a magistrate's order denying father's motion to modify child support. We affirm.

Lorraine M. Cerda (mother) initially commenced this action as a dissolution of marriage proceeding. However, after mother and father agreed there had been no common law marriage between them, the action was converted into a proceeding solely to determine custody and support of the parties' minor child.

The parties eventually agreed to joint custody of the child, although mother and the child were living in Colorado and father was living in California. The parties also agreed that mother would be the primary residential custodian and that father would pay child support of $450 per month, which was a deviation from the child support guidelines in § 14-10-115, C.R.S.2000. This stipulation was approved and made the order of the court.

Thereafter, father filed a motion to modify child support. He asserted that he had quit his job in California and moved to Colorado where he was earning substantially less and spending more time with the child. The

32 P.3d 629

motion also alleged that mother was now earning income, while none had previously been attributed to her in the stipulation

After conducting a hearing and receiving evidence, the magistrate determined that both mother and father were voluntarily underemployed. Concerning father, the magistrate determined that although his career change and move to Colorado were good faith choices because they were designed to bring him closer to the child, they nevertheless "unreasonably reduce[d] the support available to the child."

After imputing income to the parties and calculating their respective support obligations, the magistrate determined that the change in father's net support obligation did not meet the statutory ten percent threshold required for modification under § 14-10-122(1)(b), C.R.S.2000. Consequently, the magistrate denied father's motion. The district court affirmed the magistrate's order.

Father contends that the trial court erred in determining that he was voluntarily underemployed. We disagree.

We review the trial court's order for child support under an abuse of discretion standard because the issue of the parents' financial resources under § 14-10-115, C.R.S.2000, is factual in nature. In re Marriage of Balanson, 25 P.3d 28 (Colo.2001). Abuse of discretion occurs only when the trial...