In Re the Marriage of Oberg

Citations: 900 P.2d 1267; 1994 WL 667377Docket: 93CA1621

Court: Colorado Court of Appeals; January 12, 1995; Colorado; State Appellate Court

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In the case of In re the Marriage of Daniel Alan Oberg and Christina Marie Oberg, the Colorado Court of Appeals addressed several issues arising from a post-dissolution of marriage proceeding. Christina Oberg appealed the court's decision regarding the allocation of a tax dependency exemption and the denial of her request for attorney fees. Daniel Oberg cross-appealed concerning the calculation of child support and sought an adjustment for a child from his subsequent marriage. The court affirmed the denial of attorney fees but reversed the ruling on the tax exemption and partially reversed the child support calculation, remanding the case for additional findings and new orders, while also instructing the trial court to clarify the record.

The father argued that the trial court incorrectly calculated his child support obligation by failing to adjust his income based on his responsibility for a subsequent child. The court agreed in part, interpreting the statutory phrase "previously existing support order" from C.R.S. 14-10-115(7)(d.5). This statute allows for income adjustments due to obligations for other children but prohibits adjustments that would lower a previously established support order for the children of the marriage. The dissolution of the parties' marriage occurred in 1990, with initial child support set at $367 per month, later increased to $599. After the father's new child was born in December 1992, he sought an adjustment based on this obligation. However, the trial court denied this request and increased child support to $744 per month, retroactive to the date of the mother’s motion for an increase in August 1992. The court entered this order in October 1993, backdating it to the hearing date.

The court ordered child support retroactively to August 1, 1992, citing the necessity of this retroactive application to prevent injustice to the minor child due to delays in court proceedings. The father’s argument that the trial court should have considered the parties’ circumstances as they were in August 1992 and August 1993 was rejected. The court clarified that it may modify child support installments due between the motion filing and the order entry without regard to whether the circumstances justifying the modification still existed. The trial court properly assessed relevant circumstances and set child support at $744 per month, retroactive to August 1992, which the father did not dispute.

However, the father contested the trial court's decision to deny him an adjustment for his subsequent child born in December 1992. The trial court deemed the $744 modification a "previously existing" order, which affected the adjustment eligibility. The father argued that the "previously existing order" should refer to the $599 order in place at the time of the motions for modification. The court agreed with the father, stating that a support order "exists" when formally entered, despite being retroactively effective. The effective date did not alter the right to seek review, and the court emphasized that a "previously existing support order" must be an actual order entered by the court. Consequently, until the $744 order was entered in October 1993, the existing order was the March 1992 order for $599.

The trial court's calculations regarding child support were based on an incorrect prior order, necessitating a remand to reconsider the father's request for an adjustment related to his subsequent child. The court's prior calculation suggested that an adjustment would raise the child support obligation to $672 per month, exceeding the previous $599 order. Consequently, the father may be entitled to this adjustment pursuant to C.R.S. § 14-10-115(7)(d.5)(II), although the court retains discretion to deviate from guidelines if deemed inequitable under C.R.S. § 14-10-115(3)(a). The trial court previously identified an injustice from delays in the mother's motion for an increase, which may influence the remand decision. Furthermore, the trial court should establish the effective date for any adjustments owed to the father.

Regarding the mother's claim that the trial court lacked jurisdiction to modify the tax dependency exemption in violation of the separation agreement, this was rejected. C.R.S. § 14-10-115(14.5) allows for allocation of tax exemptions unless otherwise agreed, emphasizing that the court retains the authority to modify allocations based on contributions to child-rearing costs. The court can alter tax exemption provisions linked to child support upon demonstrating substantial and continuing changes in circumstances. 

However, the court erred in reallocating the tax exemption without conducting an evidentiary hearing or making necessary factual findings regarding changed circumstances. Thus, the order for alternating year exemptions must be vacated and remanded for further consideration.

On remand, the court has the authority to gather additional evidence and, if a modification is deemed necessary, must apply Colorado statute 14-10-115(14.5) to reallocate tax exemptions between the parties. It must also verify whether the father is up to date with his support obligations and whether he stands to gain any tax benefits from the exemption. The mother claims the trial court improperly denied her request for attorney fees under statutes 13-17-102 and 14-10-119, but this claim is rejected. Under 13-17-102, attorney fees can be awarded for frivolous or groundless claims, which are factual determinations for the trial court and will not be overturned if supported by the record. The trial court found no merit in the mother’s assertion that the father's refusal to settle child support calculations was unjustified. The court's discretion in awarding attorney fees under 14-10-119 was also upheld, as it appropriately considered the parties' financial situations. 

The mother’s second amended notice of appeal included three orders regarding tax exemptions, separation agreements, and attorney fees, but only one was pertinent based on the trial court's records. The trial court is instructed to clarify the record by vacating the irrelevant orders. The modification denying the father's request to adjust his support obligation due to a subsequent child is reversed and remanded for reevaluation. The current support order of $744 per month remains in effect until a new order is issued, allowing for reimbursement or credit for any discrepancies in payments. The allocation of the tax dependency exemption is also reversed, with further proceedings required. The denial of the mother's attorney fees request is affirmed.