Tognoni v. Cross

• Decision Date: 10 November 2011
• Docket Number: No. 10CA1138.,10CA1138.
• Citation: 313 P.3d 655
• Parties: In re the MARRIAGE OF David Q. TOGNONI, Appellant and Cross–Appellee, and Patricia A. Tognoni, Appellee and Cross–Appellant.
• Court: Colorado Court of Appeals

313 P.3d 655

In re the MARRIAGE OF David Q. TOGNONI, Appellant and Cross–Appellee, and Patricia A. Tognoni, Appellee and Cross–Appellant.

No. 10CA1138.

Colorado Court of Appeals, Div. VI.

Nov. 10, 2011.

Dufford & Brown, P.C., Mechelle Y. Faulk, Christian D. Hammond, Denver, Colorado, for Appellant and Cross–Appellee.

Antonio Bates Bernard, P.C., Sandra Lilley, Denver, Colorado, for Appellee and Cross–Appellant.

Opinion by Judge HAWTHORNE.

In this post-dissolution of marriage matter between David Q. Tognoni (husband) and Patricia A. Tognoni (wife), husband appeals the judgment awarding wife child support arrearages, interest, and attorney fees. Wife cross-appeals the attorney fees amount. We affirm the arrearages and interest judgment, vacate the attorney fees award, and remand for further proceedings.

I. Noncompliance with Appellate Rules

Initially, we note that husband's opening brief and wife's opening-answer brief fail to comply with C.A.R. 32(f)'s certificate of compliance requirement, and are therefore subject to being stricken. SeeC.A.R. 38(e). We admonish both parties to comply with these rules. They are not mere technicalities, but facilitate our appellate review. See O'Quinn v. Baca, 250 P.3d 629, 631 (Colo.App.2010).

II. Factual and Procedural History

In 1995, the trial court entered judgment against husband for $58,314.31 in unpaid child support and interest under the parties' dissolution decree. Husband did not seek post-judgment relief, nor did he appeal. He did, however, twice move to modify child support, first in 1997 and again in 1998, contending that his income had changed significantly and that he was unable to pay the amount ordered. In 1998, the trial court modified child support and ordered that future payments be credited first toward husband's current obligation, then to any arrearages under the modified order, and then to his past arrearages (the 1998 order). Husband did not appeal this order.

In 2009, wife requested that judgment enter for $99,831.05 in child support arrearages, for $210,092.24 in interest, and for her attorney fees. The trial court entered judgment for the arrearages and interest but denied attorney fees. Thereafter, the court accepted the parties' stipulation to vacate the judgment and ordered them to submit their arrearages and interest calculations.

Wife claimed that $399,414.24 was owed and moved for summary judgment accordingly. Husband objected and submitted his own calculations, which indicated $399,400 was owed if a 12% interest rate, compounded monthly, was applied pursuant to section 14–14–106, C.R.S.2011, but that $198,868 was owed applying an 8% rate compounded annually. Husband requested a hearing on the issue. In reply, wife requested attorney fees under section 13–17–102(4), C.R.S.2011, contending that husband's position lacked substantial justification. Without conducting a hearing, the trial court entered judgment against husband for $399,400, and awarded wife one half her attorney fees. After the court denied husband relief under C.R.C.P. 59, husband appealed and wife cross-appealed.

III. Summary Judgment

Husband first contends that the trial court erred by entering summary judgment on the arrearages and interest amount. We disagree.

An appellate court reviews the trial court's order granting summary judgment de novo. Georg v. Metro Fixtures Contractors, Inc., 178 P.3d 1209, 1212 (Colo.2008). Summary judgment is appropriate when there are no genuine material factual issues and the moving party is legally entitled to judgment. SeeC.R.C.P. 56(c); Georg, 178 P.3d at 1212. Summary judgment is a drastic remedy, however, and should be granted only when these requirements are clearly met. AviComm, Inc. v. Colo. Pub. Utils. Comm'n, 955 P.2d 1023, 1029 (Colo.1998).

A. Arrearages Amount

The arrearages amounts determined by the parties differed by $14.24, assuming a 12% interest rate compounded monthly as provided under section 14–14–106. The trial court used husband's expert's calculation in entering judgment. Thus, we reject husband's contention that there were material disputed factual issues concerning the arrearages amount.

Husband argues that a disputed factual issue existed because, in response to wife's motion for summary judgment, he asserted that he had paid off the principal of his child support debt to the county Child Support Enforcement Unit (CSEU) in 2009. However, he did not contend that his expert's calculated amount failed to account for this payment. Nor did he argue that his expert's arrearages calculation was incorrect. Thus, the record does not support husband's argument that his principal payment to the CSEU was a material fact preventing the court from entering summary judgment. To the extent husband contends for the first time on appeal that his expert's calculations were incorrect, either because the principal payment was not taken into account or because an incorrect emancipation date for his youngest child was used, we do not address these contentions. See In re Marriage of Atencio, 47 P.3d 718, 722 (Colo.App.2002) (appellate court does not address contentions raised for the first time on appeal).

We also reject, for two reasons, husband's contention that the trial court applied his payments incorrectly by not reducing his oldest debt first, as required by Weston Group, Inc. v. A.B. Hirschfeld Press, Inc., 845 P.2d 1162, 1166 (Colo.1993). First, husband's own calculations in his response to wife's motion for summary judgment applied his payments in this fashion, and he may not raise on appeal an error which he himself invited. See Horton v. Suthers, 43 P.3d 611, 618 (Colo.2002).

Second, husband did not timely appeal the 1998 order, which established the method for applying child support payments. A notice of appeal must be filed within forty-five days after the trial court enters a final order. C.A.R. 4(a). “The timely filing of a notice of appeal is a jurisdictional prerequisite to appellate review.” In re Marriage of Buck, 60 P.3d 788, 789 (Colo.App.2002). Thus, we do not address the arrearages payment schedule established in the 1998 order. See In re Marriage of Warner, 719 P.2d 363, 364–65 (Colo.App.1986) (trial court did not abuse discretion by refusing to vacate writ of garnishment based on party's arguments attacking the underlying arrearages judgment, from which party did not timely seek relief).

Further, we reject husband's contention that the court should have held a hearing on his factual allegations that he missed child support payments only because he had difficulty keeping a job between 1995 and 2004 and was thus unable to pay. The record reflects that husband made similar allegations in his 1997 and 1998 motions to modify child support and, as previously noted, the court modified child support in its 1998 order. Husband did not appeal from that order. Accordingly, the trial court did not err by refusing to revisit the appropriate child support amount for these previous years.

We are not persuaded otherwise by husband's contention, citing In re Marriage of Jacobs, 859 P.2d 914 (Colo.App.1993), and In re Marriage of Dennin, 811 P.2d 449 (Colo.App.1991), that equitable considerations require that his arrearages be ameliorated. Jacobs involved the obligor's timely request for relief from judgment under C.R.C.P. 60. See859 P.2d at 915. Here, in contrast, husband did not timely seek relief from the underlying judgments at issue and is thus not entitled to such relief now. See Warner, 719 P.2d at 364–65;see also§ 14–10–122(1)(c), C.R.S.2011 (child support payments become final money judgments when due and unpaid and shall not be retroactively modified except as provided in the statute).

In Dennin, the obligor father was granted relief from arrearages because he justifiably relied on the mother's agreement to terminate his child support obligation in exchange for his agreement that the child could be adopted by her stepfather. See811 P.2d at 450. The father was granted such relief only for arrearages that accrued before he learned that the adoption never took place. See id. at 451. Here, husband raises his difficulty in paying the support amount ordered, which was essentially the same issue raised in his previous motions to modify.

Accordingly, we conclude that the trial court did not err by declining to grant husband a hearing on the particular grounds he raised. Cf. In re Marriage of Nielsen, 794 P.2d 1097, 1098 (Colo.App.1990) (ordinary financial hardship resulting from applying child support guidelines is not a basis for deviating from the guidelines).

B. Interest

Husband contends that the trial court erred in finding that it lacked discretion under section 14–14–106 to determine the appropriate interest rate and compounding period to apply to the child support arrearages. We disagree and conclude that a court has no discretion to modify the interest rate or determine the compounding period, as provided under the statute, although such interest may be waived by the judgment creditor.

The right to interest, absent an agreement to pay it, is determined by statute. See In re Marriage of Armit, 878 P.2d 101, 103 (Colo.App.1994). Statutory interpretation presents legal questions, which we review de novo. Dubois v. People, 211 P.3d 41, 43 (Colo.2009). In construing statutes, we seek to effectuate the General Assembly's intent. Askew v. Indus. Claim Appeals Office, 927 P.2d 1333, 1337 (Colo.1996). Courts look first to the statutory language, giving words and phrases their commonly accepted and understood meaning. Id.; see also In re Marriage of Chalat, 112 P.3d 47, 54 (Colo.2005) (where statute is facially clear and unambiguous, reviewing court presumes the General Assembly meant what it clearly said and applies statute as written).

Here, interest was awarded based on husband's expert's interest calculation made under section 14–14–106:

Interest per annum at four percent greater than the statutory rate set...