     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 8, 2018
                                2018COA34

No. 17CA0262, In re Marriage of Boettcher — Family Law —
Post-dissolution — Modification of Child Support — Schedule of
Basic Child Support Obligations — Discretion

     In this appeal of a post-dissolution of marriage order

modifying the amount of the father’s child support obligation, a

division of the court of appeals addresses the requirements for

modifying such support when the parents’ combined incomes

exceed $30,000 per month, the highest level of the support

schedule in section 14-10-115(7)(b), C.R.S. 2017. The division

rejects the father’s argument that the support obligation at the

highest level is the presumptive amount under the guidelines, such

that any greater award constitutes a deviation requiring findings in

accordance with section 14-10-115(8)(e). Rather, consistent with

the plain language of section 14-10-115(7)(a)(II)(E), the district court

may use discretion to determine support in such high income
cases, but the presumptive amount shall not be less than it would

be based on the highest level of the schedule.

     In this case, the district court applied the correct legal

standard in finding that there was no presumptive child support

amount under the parties’ circumstances, acknowledging the

minimum presumptive amount under the guidelines, and then

using its discretion to determine a higher amount based on the

factors in section 14-10-115(2)(b).

     The division affirms the order of the district court.
COLORADO COURT OF APPEALS                                        2018COA34


Court of Appeals No. 17CA0262
Weld County District Court No. 10DR822
Honorable W. Troy Hause, Judge


In re the Marriage of

Ryan E. Boettcher,

Appellant,

and

Christina L. Boettcher,

Appellee.


                                ORDER AFFIRMED

                                     Division IV
                            Opinion by JUDGE VOGT*
                        Loeb, C.J., and Casebolt*, J., concur

                             Announced March 8, 2018


Eckelberry Law Firm, LLC, John L. Eckelberry, Denver, Colorado, for Appellant

Peek Goldstone, LLC, Amanda M. Peek, Greeley, Colorado, for Appellee


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    In this post-dissolution of marriage dispute concerning child

 support for the child of Ryan E. Boettcher (father) and Christina L.

 Boettcher (mother), father appeals the order modifying his support

 obligation and requiring him to pay a portion of mother’s attorney

 fees under section 14-10-119, C.R.S. 2017. We affirm.

                            I. Background

¶2    The parties’ ten-year marriage ended in 2011. Their

 agreement that no child support would be owed by either of them

 was incorporated into the decree.

¶3    In 2015, mother moved to modify child support, alleging

 changed income resulting in more than a ten percent change in the

 amount of support that would be due. The district court ordered

 the parties to exchange financial information and mediate, but the

 support issue was not resolved.

¶4    After a hearing, the district court ordered father to pay mother

 $3000 in monthly child support as of the date she moved to modify,

 which, after crediting father with payments he voluntarily made,

 resulted in arrearages of $34,822, to be paid off over twenty-four

 months. Based on the disparity in the parties’ financial resources




                                     1
 and income, the court further ordered father to pay seventy percent

 of mother’s attorney fees incurred for the proceedings.

                           II. Child Support

¶5    Father contends that the court erred by (1) determining that

 there was no rebuttable presumptive child support obligation when

 the parents’ combined incomes exceed the highest level of the

 statutory income schedule; (2) not making sufficient findings and

 including inappropriate expenses in awarding mother $3000 per

 month in child support; and (3) awarding retroactive child support

 back to the date of mother’s motion without making sufficient

 findings to support the award. We disagree.

                        A. Standard of Review

¶6    “We review child support orders for abuse of discretion

 because the issue of the parents’ financial resources is factual in

 nature.” In re Marriage of Davis, 252 P.3d 530, 533 (Colo. App.

 2011). A court abuses its discretion when its decision is manifestly

 arbitrary, unreasonable, or unfair. In re Marriage of Atencio, 47

 P.3d 718, 720 (Colo. App. 2002).

¶7    We review de novo whether the district court applied the

 correct legal standard. Id. “Interpretation of the child support


                                    2
 statutes is a question of law that we review de novo.” In re Marriage

 of Paige, 2012 COA 83, ¶ 9.

     B. Determining Child Support When the Parents’ Combined
     Incomes Exceed the Highest Level of the Statutory Schedule

¶8     Child support is determined by applying the schedule in

 section 14-10-115(7)(b), C.R.S. 2017, to the parents’ combined

 gross incomes. See § 14-10-115(7)(a)(I); Davis, 252 P.3d at 534.

 The resulting basic child support obligation is then divided between

 the parents in proportion to their adjusted gross incomes. § 14-10-

 115(7)(a)(I).

¶9     The schedule establishes child support amounts for parents

 with combined monthly incomes from $1100 to $30,000. See § 14-

 10-115(7)(b). There is a rebuttable presumption in such cases that

 child support should be ordered in the amount indicated by the

 schedule. See § 14-10-115(8)(e); In re Marriage of Wells, 252 P.3d

 1212, 1214 (Colo. App. 2011). The court may deviate from the

 schedule if it determines that the amount indicated would be

 inequitable, unjust, or inappropriate, but it must make findings

 specifying the presumptive amount and its reasons for the

 deviation. § 14-10-115(8)(e); Wells, 252 P.3d at 1214.



                                   3
¶ 10   For parents with combined incomes above the highest level of

  the schedule, or greater than $30,000 per month, “[t]he judge may

  use discretion to determine child support . . . except that the

  presumptive basic child support obligation shall not be less than it

  would be based on the highest level.” § 14-10-115(7)(a)(II)(E); see In

  re Marriage of Balanson, 25 P.3d 28, 43-44 (Colo. 2001); see also In

  re Marriage of Van Inwegen, 757 P.2d 1118, 1120 (Colo. App. 1988)

  (noting that the legislative history of the statute indicates that “the

  guideline provides calculated amounts of child support up to a

  specific combined gross income level, but in cases with a higher

  combined gross income, child support is to be determined on a

  case-by-case basis”).

¶ 11   In exercising its discretion, the district court considers all

  relevant factors, including: (1) the child’s and the custodial parent’s

  financial resources; (2) the standard of living the child would have

  enjoyed had the marriage not been dissolved; (3) the child’s physical

  and emotional condition and educational needs; and (4) the

  financial resources and needs of the noncustodial parent. § 14-10-

  115(2)(b); see In re Marriage of Schwaab, 794 P.2d 1112, 1113

  (Colo. App. 1990); Van Inwegen, 757 P.2d at 1120-21; 19 Frank L.


                                     4
  McGuane & Kathleen A. Hogan, Colorado Practice Series: Family

  Law & Practice § 26:17, Westlaw (2d ed. database updated May

  2017).

¶ 12   Father argues that, under section 14-10-115(7)(a)(II)(E), for

  combined incomes above the highest level of the schedule, the child

  support obligation at the highest level is the presumptive amount

  under the guidelines, such that any greater award constitutes a

  deviation under section 14-10-115(8)(e). We are not persuaded.

¶ 13   First, the statute does not by its plain language state that the

  support amount at the highest level of the schedule is the

  presumptive amount whenever the parents’ combined incomes

  exceed the highest level of the schedule. Cf. Paige, ¶ 9 (if statutory

  language is clear and unambiguous on its face, we apply it as

  written). Instead, the statute provides that the court “may use

  discretion” to determine support in that circumstance, but that the

  presumptive obligation “shall not be less than it would be based on

  the highest level” of the schedule. § 14-10-115(7)(a)(II)(E) (emphasis

  added). Consistent with this language, cases from this court

  describe the support amount at the highest level of the schedule in

  this circumstance as the “minimum” presumptive amount of


                                     5
  support, as opposed to the presumptive amount of support. See,

  e.g., In re Marriage of Ludwig, 122 P.3d 1056, 1060 (Colo. App.

  2005); In re Marriage of Antuna, 8 P.3d 589, 597 (Colo. App. 2000);

  Van Inwegen, 757 P.2d at 1120.

¶ 14   Thus, under the statute, a court may not award less than the

  support amount at the highest level of the schedule without

  deviating under section 14-10-115(8)(e). However, deviation does

  not apply when the court awards more than the amount of support

  from the highest income level of the schedule. Rather, in that

  circumstance, the court exercises its discretion to determine an

  appropriate amount of support based on relevant factors, including

  those listed at section 14-10-115(2)(b)(I)-(V). See Schwaab, 794

  P.2d at 1113; Van Inwegen, 757 P.2d at 1120-21; cf. In re Marriage

  of Nimmo, 891 P.2d 1002, 1007 (Colo. 1995) (noting that the child

  support guidelines “were not enacted to prevent an increase in a

  child’s standard of living by denying a child the fruits of one

  parent’s good fortune after a divorce”); In re Marriage of Bohn, 8

  P.3d 539, 541-42 (Colo. App. 2000) (upholding child support

  obligation set at twice the amount of the child’s needs when parent

  had won lottery and noting that “[n]othing in the child support


                                     6
  statute precludes the trial court from ordering a support payment

  that exceeds the known needs of the child”). As a division of this

  court described the standard in Schwaab, “it is to be presumed,

  subject to rebuttal, that the minimum amount of support is that set

  forth in the highest level of the guidelines;” however, “[t]he actual

  level of support required . . . will depend upon the court’s exercise

  of its discretion” in applying the section 14-10-115(2)(b) factors.

  794 P.2d at 1113.

¶ 15   Based on these authorities and the plain language of section

  14-10-115(7)(a)(II)(E), because the district court did not award less

  than the highest amount indicated by the statutory schedule, it did

  not err in failing to treat the highest amount as presumptive. To

  the extent other divisions of this court have held otherwise and

  required deviation findings in this context, we decline to follow

  those cases. See, e.g., In re Marriage of Upson, 991 P.2d 341, 344-

  45 (Colo. App. 1999); see also People v. Abu-Nantambu-El, 2017

  COA 154, ¶ 88 (“[O]ne division of the court of appeals is not bound

  by a decision of another division.”).

¶ 16   Had the legislature intended the amount of child support at

  the highest level of the income schedule to be the presumptive


                                     7
  amount of support in all cases where the parents’ combined

  incomes exceed the highest level of the schedule, it could have

  clearly so provided, as, for example, Arizona’s child support

  guidelines do. See Ariz. Rev. Stat. Ann. § 25-320 app. ¶ 8 (Child

  Support Guidelines 2017) (“If the combined adjusted gross income

  of the parties is greater than $20,000 per month, the amount set

  forth for combined adjusted gross income of $20,000 shall be the

  presumptive Basic Child Support Obligation.”). Our legislature did

  not use such language, but instead stated that the presumptive

  obligation in such cases “shall not be less than” the highest

  amount. § 14-10-115(7)(a)(II)(E). We apply the statute as its plain

  language dictates. See Paige, ¶ 9.

¶ 17   Additionally, father’s argument that the basic child support

  obligation in this case — where father alone earns $92,356 per

  month and the parties together earn $105,699 per month — should

  be presumed at the level of parents who earn a combined $30,000

  per month conflicts with the “Income Shares Model” on which

  Colorado’s child support guidelines are based. See Nimmo, 891

  P.2d at 1006. That model assumes that a certain percentage of the

  parents’ combined income in an intact household will be spent on


                                    8
  their children and calculates child support obligations accordingly.

  Id. at 1006-07. The model was formulated to address concerns that

  child support levels were being set too low and that children were

  suffering a decrease in their standard of living after their parents

  divorced. Id. As the supreme court in Nimmo recognized, children

  are not locked into their parents’ marital standard of living until

  emancipation, but rather are entitled to share in a parent’s good

  fortune, such as father’s significant increase in income here, after a

  divorce. See id. at 1007; see also Bohn, 8 P.3d at 542.

¶ 18   It would accordingly not be appropriate under the Income

  Shares Model to treat the parents here the same as parents earning

  less than one-third of their income, or to impose the same

  presumptive child support obligation on both sets of parents.

¶ 19   In sum, we conclude that the district court applied the correct

  legal standard in (1) finding that there was no presumptive child

  support amount under the parties’ circumstances; (2) recognizing

  the minimum presumptive amount under the guidelines; and (3)

  then using its discretion to determine a higher amount based on

  the section 14-10-115(2)(b) factors.




                                     9
             C. Sufficiency of the District Court’s Findings

¶ 20   We further conclude that, in determining child support, the

  district court made sufficient findings concerning the relevant

  statutory factors and did not include inappropriate expenses in its

  award. Additionally, the amount of support it awarded — $3000

  per month — is not manifestly arbitrary, unreasonable, or unfair

  under the parties’ circumstances and thus does not constitute an

  abuse of discretion. See Atencio, 47 P.3d at 720.

¶ 21   The district court acknowledged father’s argument that his

  monthly child support obligation under the highest income level of

  the schedule would be $1424.82, as well as mother’s argument that

  it should extrapolate upward from the highest level, which would

  result in a monthly child support payment of $5024.52 for father.

  In rejecting both parties’ arguments and setting father’s obligation

  at $3000 per month, the court noted that it was required to

  consider the relevant factors at section 14-10-115(2)(b) and that it

  had done so. As noted supra Part II.B, the court was not required

  to make deviation findings under section 14-10-115(8)(e) because

  there was no presumptive support amount here.




                                   10
¶ 22   The court found that the child had no financial resources of

  his own and that the marital standard of living, while relevant, was

  not dispositive. Rather, the child was entitled to benefit from the

  fact that father had done very well financially since the dissolution.

  See § 14-10-115(2)(b)(II), (III), (V) (court considers both parents’

  financial resources and standard of living child would have enjoyed

  had marriage not ended). The court noted the disparity in the

  parties’ abilities to provide for shared activities and experiences

  with the child, and it credited mother’s concern that this disparity

  would have an impact on her relationship with the child as he grew

  older. It further found mother credible in her testimony that she

  would spend child support payments to raise the child’s standard of

  living, and it found that it was reasonable for her to want to save for

  his future college expenses even though doing so was not legally

  required. See § 14-10-115(2)(b)(IV) (court is to consider child’s

  educational needs).

¶ 23   The court’s findings are supported by the record. Mother

  testified to the differences in the level of experiences the parties

  were able to provide for the child and that child support would

  enable her to purchase better clothes for him, travel more, eat at


                                     11
  nicer restaurants, and participate in boating, which was an activity

  the child enjoyed with father. She further testified that she wanted

  to continue to save for the child’s college expenses and was afraid

  she would not be able to do so as the parties’ distributions from

  their partnership, PFC Funding, declined — which both testified

  would happen.

¶ 24   Father did not dispute the level of experiences and activities

  he was able to provide, including numerous trips with the child;

  however, he argues on appeal that the court did not consider

  additional financial circumstances, such as his tax liability and a

  significant debt obligation, that affected his ability to pay support.

  Nor, he argues, did the court acknowledge mother’s monthly

  surplus as a financial resource.

¶ 25   Although the court’s order does not reference these

  circumstances, we presume that the court considered the testimony

  on the subject. See In re Marriage of Hatton, 160 P.3d 326, 329

  (Colo. App. 2007). Additionally, even assuming the amount of debt

  and taxes father claimed, his remaining monthly income is still

  sufficient to provide support at the $3000 per month amount

  ordered by the court.


                                     12
¶ 26   Nor do we agree with father that the court included

  inappropriate expenses, such as mother’s travel and activity

  expenses, in imposing a $3000 per month support obligation. As

  noted, the court considered mother’s testimony concerning the

  parties’ differing abilities to engage in discretionary spending on

  vacations and special activities with the child. The child was ten

  years old at the time of the hearing and thus could not reasonably

  participate in such activities without a parent also participating.

¶ 27   Father’s reliance on section 14-10-115(11)(a)(II), which allows

  a court to apportion only a child’s transportation expenses between

  the parties, see In re Marriage of Elmer, 936 P.2d 617, 622-23 (Colo.

  App. 1997), is misplaced. That statute by its plain terms applies

  only to transportation expenses for travel between the parents’

  homes for parenting time. See § 14-10-115(11)(a)(II); Elmer, 936

  P.2d at 622-23. It does not apply when the court is exercising its

  discretion to determine child support for high income parents under

  sections 14-10-115(2)(b) and 14-10-115(7)(a)(II)(E). Further, even if

  it did apply in that context, it allows the court to include an

  accompanying parent’s travel expenses for a child under the age of

  twelve.


                                    13
¶ 28   The court also did not abuse its discretion by considering

  mother’s desire to save for the child’s college expenses, even

  though, as it noted, neither she nor father was obligated to pay

  such expenses as a part of their child support obligation. The

  child’s “educational needs” are a factor that the court considers

  under section 14-10-115(2)(b). By considering that factor, the court

  did not order father to pay postsecondary education expenses in

  contravention of section 14-10-115(13)(a), as father argues.

¶ 29   Finally, we note that the district court did not “mechanically

  extrapolate” above the guidelines, as mother had requested. See

  Van Inwegen, 757 P.2d at 1121. Rather, it specifically declined to

  do so and instead relied on the section 14-10-115(2)(b) factors. We

  conclude that its findings under those factors are sufficient to

  support the amount of child support it ordered. Cf. Ludwig, 122

  P.3d at 1060 (remanding for additional findings under the statutory

  factors to support extrapolation when the court had made no

  findings concerning the child’s specific needs); Van Inwegen, 757

  P.2d at 1121 (“Inasmuch as the trial court here set child support by

  mechanically extrapolating the amounts specified in the guideline,

  it did not consider the statutorily specified relevant factors. Thus,


                                    14
  its order represents an abuse of discretion and cannot stand.”). But

  cf. Upson, 991 P.2d at 344-45 (applying deviation standard and

  concluding that general findings concerning child’s needs were

  insufficient). Thus, we discern no abuse of the discretion provided

  to the court in this situation. See § 14-10-115(7)(a)(II)(E); see also

  Bohn, 8 P.3d at 542.

                       D. Retroactive Modification

¶ 30   We are not persuaded by father’s contention that the court

  erred by retroactively modifying child support back to the date

  mother moved to modify.

¶ 31   A child support modification “should be effective as of the date

  of the filing of the motion, unless the court finds that it would cause

  undue hardship or substantial injustice.” § 14-10-122(1)(d), C.R.S.

  2017; see In re Marriage of Nelson, 2012 COA 205, ¶ 40.

¶ 32   As mother points out, father did not argue, nor does the

  record show, that applying the statute would cause undue hardship

  or substantial injustice. Cf. Nelson, ¶ 41 (upholding maintenance

  modification as of date of motion to modify when, although the

  court made no finding concerning hardship, the husband’s income

  had increased such that he was able to pay the retroactive


                                     15
  maintenance). Thus, the court did not abuse its discretion in

  applying the statute here, and because father did not argue a basis

  for undue hardship or substantial injustice, it also did not err in

  not addressing that issue.

                  III. Section 14-10-119 Attorney Fees

¶ 33   Last, father contends that the district court abused its

  discretion by awarding mother a portion of her attorney fees under

  section 14-10-119 without making sufficient findings to support the

  award. We disagree.

¶ 34   Section 14-10-119 empowers the trial court to apportion costs

  and fees equitably between parties based on their relative ability to

  pay. In re Marriage of Gutfreund, 148 P.3d 136, 141 (Colo. 2006).

  Courts are allowed great latitude under the statute to craft attorney

  fees orders appropriate to the circumstances in a given case. Id.;

  see Davis, 252 P.3d at 538 (decision whether to award fees under

  section 14-10-119 will not be disturbed absent abuse of discretion).

¶ 35   After finding the parties’ incomes for child support

  modification purposes, the district court found, based on the

  disparity in their resources and income, that it was equitable to




                                    16
  award mother seventy percent of her attorney fees exclusive of her

  expert witness fees.

¶ 36   We conclude that these findings, when considered along with

  the evidence in the record, are sufficient to support the attorney

  fees award. See Bohn, 8 P.3d at 542 (“[A]fter making findings as to

  both parties’ financial resources for purposes of child support, the

  trial court found that the father ‘is far better able to pay the cost of

  this proceeding than the [mother].’ This is a sufficient basis to

  support the award.”). Again, we presume that the court considered

  the evidence before it concerning the parties’ financial

  circumstances. Contrary to father’s argument, it was not required

  to award a lesser amount simply because father’s own attorney fees

  were almost twice as much as mother’s.

                         IV. Appellate Attorney Fees

¶ 37   Mother requests her attorney fees incurred on appeal under

  section 13-17-102, C.R.S. 2017, contending that the appeal is

  substantially frivolous. We deny the request.

¶ 38   “Standards for determining whether an appeal is frivolous

  should be directed toward penalizing egregious conduct without

  deterring a lawyer from vigorously asserting his client’s rights.”


                                     17
  Mission Denver Co. v. Pierson, 674 P.2d 363, 365 (Colo. 1984). Fees

  should be awarded only in clear and unequivocal cases when the

  appellant presents no rational argument, or the appeal is

  prosecuted for the purpose of harassment or delay. See Wood Bros.

  Homes, Inc. v. Howard, 862 P.2d 925, 934-35 (Colo. 1993). That is

  not the situation here. We therefore decline to award mother

  appellate fees.

                                V. Conclusion

¶ 39   The order is affirmed.

       CHIEF JUDGE LOEB and JUDGE CASEBOLT concur.




                                     18
