     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
                                                                 May 23, 2019

                                2019COA83

No. 18CA0589, Marriage of Tooker — Family Law — Post-
Dissolution — Modification and Termination of Provisions for
Maintenance, Support, and Property — Modification of Child
Support

     In this post-dissolution of marriage dispute, a division of the

court of appeals considers whether the district court erred in

modifying husband’s spousal maintenance and child support

obligations by not including the tuition assistance and book stipend

husband received under the Post-9/11 Veterans Educational

Assistance Act of 2008 as “income for purposes of calculating”

maintenance and child support. The division concludes that

because these benefits were not available for husband’s

discretionary use or to reduce his daily living expenses, the district

court properly excluded them when calculating husband’s gross

income.
     The division also rejects mother’s contentions that the district

court erred in not including husband’s potential timber income in

calculating maintenance and child support and not making

sufficient findings to modify husband’s maintenance obligation.
COLORADO COURT OF APPEALS                                       2019COA83


Court of Appeals No. 18CA0589
El Paso County District Court No. 14DR3131
Honorable Erin Sokol, Judge


In re the Marriage of

Jennifer Ann Tooker,

Appellant,

and

Mark Glen Tooker,

Appellee,

and Concerning

El Paso County Child Support Services,

Intervenor.


                              ORDER AFFIRMED

                                  Division VII
                           Opinion by JUDGE DUNN
                        Ashby and Martinez*, JJ., concur

                           Announced May 23, 2019


Beltz & West, P.C., Daniel A. West, Colorado Springs, Colorado, for Appellant

No Appearance for Appellee

Marrison Family Law, LLC, Mikayla Shearer, Colorado Springs, Colorado, for
Intervenor
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    The Post-9/11 Veterans Educational Assistance Act of 2008,

 referred to here as the GI Bill, 38 U.S.C. §§ 3301-3327 (2018),

 provides eligible veterans with education benefits such as tuition

 assistance, a stipend for books and supplies, and a monthly

 housing allowance, 38 U.S.C. § 3313(a), (c)(1) (2018). Mark Glen

 Tooker, a retired veteran, took advantage of the GI Bill’s benefits to

 attend college.

¶2    In this post-dissolution of marriage dispute, Mark’s former

 spouse, Jennifer Ann Tooker, challenges the district court’s order

 modifying Mark’s spousal maintenance and child support

 obligations.1 More specifically, she contends the district court erred

 in not (1) including the tuition assistance and book stipend Mark

 received under the GI Bill as income for purposes of calculating

 maintenance and child support; (2) including Mark’s potential

 timber income in calculating maintenance and child support; and

 (3) making sufficient findings to modify Mark’s maintenance

 obligation. Because we disagree with these contentions, we affirm.




 1For clarity, and without intending any disrespect to the parties, we
 will refer to the parties by their first names.

                                    1
                            I. Background

¶3    The district court entered a decree dissolving the parties’

 twenty-year marriage in 2015. At that time, Mark and Jennifer had

 two biological children. Jennifer also had a daughter, A.C.J.T., who

 was not Mark’s biological child.

¶4    As part of the dissolution decree, and based on the parties’

 agreed parenting plan, the district court excluded A.C.J.T. from the

 child support calculation but ordered Mark to pay child support for

 the Tookers’ two biological children, as well as maintenance.

¶5    Within the next few years, Jennifer and Mark each sought to

 modify Mark’s monthly obligations. For her part, Jennifer asserted

 that Mark was A.C.J.T.’s legal parent and moved to modify the child

 support obligation to include A.C.J.T. 2 She also moved to modify

 maintenance, arguing that circumstances had changed due to a

 “more than 10%” decrease in her income.

¶6    For his part, Mark sought modification or termination of

 maintenance based on other changed circumstances, including his




 2While the modification proceedings were pending, the Tookers’ two
 biological children became emancipated.

                                    2
 reduced income (due to his military retirement) and, in his view,

 Jennifer’s “dramatically increased income.”

¶7    While the modification motions were pending, the juvenile

 court, in a separate proceeding not contested here, determined that

 Mark was A.C.J.T.’s legal father.

¶8    Not long after, the district court held an evidentiary hearing on

 the parties’ motions to modify maintenance and Jennifer’s motion

 to modify child support. It declined to modify Mark’s maintenance

 obligation and, as relevant here, ordered Mark to pay $563 a month

 in child support for A.C.J.T. When calculating Mark’s income, the

 district court included his military retirement; forty hours per week

 of imputed employment income; and, from the GI Bill, Mark’s

 tuition assistance, book stipend, and housing allowance.

¶9    After the court entered the modification order, Mark sought

 reconsideration under C.R.C.P. 59. With respect to the GI Bill

 benefits, Mark argued that the tuition assistance and book stipend

 benefits should not be included as income for purposes of child

 support and maintenance. But he acknowledged that “the housing

 allowance stipend paid directly to [him] should be included.” The

 district court agreed, finding that the tuition assistance payment


                                     3
  was “made directly to [Mark’s] educational institution” and he was

  not free to use this money on daily living expenses. The court

  similarly found the GI Bill allotted the book stipend for Mark’s

  “educational books” and he could not use the stipend for

  discretionary expenses.

¶ 10   Given this, the district court excluded the GI Bill tuition

  assistance and book stipend benefits from Mark’s income. It then

  recalculated his income using his military retirement, the GI Bill

  housing allowance, and forty hours per week of imputed

  employment income. The court concluded that Mark’s monthly

  income was $3749. Based on the recalculated income, the district

  court ordered Mark to pay $553 per month in child support. And

  applying “the statutory formula” for maintenance to Mark’s

  recalculated income, the district court found that he owed “$0.00”

  and therefore terminated his maintenance obligation.

                         II. The GI Bill Benefits

¶ 11   Jennifer contends the district court erred in excluding Mark’s

  GI Bill tuition assistance and book stipend benefits from his income

  for purposes of calculating maintenance and child support. We are

  not persuaded.


                                    4
¶ 12   We review maintenance and child support orders for an abuse

  of discretion. See In re Marriage of Thorstad, 2019 COA 13, ¶ 27

  (maintenance modification); In re Marriage of Davis, 252 P.3d 530,

  533 (Colo. App. 2011) (child support modification). But we review

  de novo whether the court applied the correct legal standard. See

  Thorstad, ¶ 27 (maintenance modification); Davis, 252 P.3d at 533

  (child support modification).

¶ 13   A district court must determine the parties’ gross incomes

  before calculating maintenance and child support. See

  § 14-10-114(3)(a)(I)(A), C.R.S. 2018 (maintenance);

  § 14-10-115(1)(b)(I), (5)(a), C.R.S. 2018 (child support). A party’s

  gross income for this purpose means “income from any source.”

  § 14-10-114(8)(c)(I); § 14-10-115(5)(a)(I).

¶ 14   The statutes, however, say nothing about GI Bill benefits,

  neither including them in the definition of gross income, see

  § 14-10-114(8)(c)(I) (nonexclusive list of income included in

  definition of gross income for maintenance); § 14-10-115(5)(a)(I)

  (same for child support), nor excluding them from the definition,

  see § 14-10-114(8)(c)(II) (excluding certain income from gross




                                      5
  income for purposes of maintenance); § 14-10-115(5)(a)(II) (same for

  purposes of child support).

¶ 15   And Jennifer points us to no authority — nor have we found

  any — that has included (or excluded) GI Bill tuition assistance and

  book stipend benefits in a former spouse’s gross income for

  purposes of maintenance and child support. But courts have

  considered whether payments made for a spouse’s benefit are

  includable as gross income under the maintenance and child

  support statutes when those payments are not currently available

  for the spouse’s general living expenses. See, e.g., Davis, 252 P.3d

  at 535; In re Marriage of Mugge, 66 P.3d 207, 210 (Colo. App. 2003).

¶ 16   Mugge is particularly instructive. There, the father retired in

  exchange for an employer contribution to his pension plan. 66 P.3d

  at 209. On his retirement, the father elected not to take a

  distribution but to roll his pension into another plan. Id. The

  mother moved to modify the father’s child support obligation,

  arguing the employer’s pension contribution should be included as

  gross income for child support purposes. Id. at 209-10. The Mugge

  division disagreed. Id. at 211. It recognized that the father did not

  have the option of directly receiving the contribution “as wages.” Id.


                                    6
  And it thus concluded that, before actual distribution to the father

  is made, employer contributions to his retirement account or

  pension plan do not “constitute gross income” for child support

  purposes. Id.

¶ 17   Some years later, the Davis division considered whether an

  employer’s contributions to the husband’s 401(k) plan and health

  insurance plans should be included in his income for child support

  purposes. 252 P.3d at 534-35. The division concluded that the

  district court did not err in excluding the employer’s contributions

  from the husband’s gross income. Id. at 535. In reaching this

  conclusion, it found that, as in Mugge, the husband “did not have

  the option to take [the employer’s] contributions as wages and use

  them for general living expenses.” Id.; see also In re Marriage of

  Mellott, 93 P.3d 1219, 1221-22 (Kan. Ct. App. 2004) (concluding

  that employer tuition reimbursements were not income under

  Kansas’s child support guidelines because the tuition

  reimbursements did not reduce the father’s living expenses).

¶ 18   The principle that emerges from these cases is that, to be

  included as gross income for purposes of maintenance and child

  support, benefits received by an individual (if not otherwise


                                    7
  excluded from the definition of gross income in the maintenance

  and child support statutes) must be available for the individual’s

  discretionary use or to reduce daily living expenses. With this in

  mind, we turn to the tuition assistance and book stipend benefits

  Mark received under the GI Bill.

¶ 19   Jennifer does not dispute that Mark’s tuition assistance

  benefit was not paid to him but, rather, was paid directly to his

  college. A letter from the Department of Veterans Affairs introduced

  at the modification hearing confirmed that the Department “issued

  a tuition and fees payment to [Mark’s] school[] on [his] behalf.” And

  nothing in the record shows that Mark had any ability to receive the

  GI Bill tuition assistance benefit personally or use it for general

  living or other discretionary expenses.

¶ 20   Because the tuition assistance benefit was not available to

  Mark for general living expenses and would in no discernable way

  assist him in paying maintenance or child support, we conclude

  that the district court properly excluded the tuition assistance

  benefit as gross income for purposes of calculating maintenance

  and child support. See Davis, 252 P.3d at 535; Mugge, 66 P.3d at

  211; see also Mellott, 93 P.3d at 1221-22.


                                     8
¶ 21   We reach the same conclusion with respect to the book

  stipend. Though the relatively modest stipend appears to be paid

  directly to Mark, the record supports the district court’s finding that

  it was “allotted for [his] educational books and . . . may not be used

  at [his] discretion to decrease his daily living expenses.” And

  Jennifer neither argues otherwise nor points to any record evidence

  suggesting differently. Given this, the district court did not abuse

  its discretion in excluding the book stipend from Mark’s gross

  income. See Davis, 252 P.3d at 536 (concluding that the district

  court did not err in excluding the employer’s health insurance

  stipend from the employee’s gross income for child support

  purposes because the stipend was not significant and did not

  reduce living expenses); cf. In re Marriage of Long, 921 P.2d 67, 69

  (Colo. App. 1996) (receiving free military housing and utilities was

  income for purposes of child support because the noncash benefit

  relieved the husband of “what is arguably his primary necessary

  expense” and increased his income “by approximately 20%”).

¶ 22   We are not persuaded otherwise by Jennifer’s reliance on Oley

  v. Branch, 762 S.E.2d 790 (Va. Ct. App. 2014). There, the Virginia

  Court of Appeals concluded that a Federal Pell Grant (a form of


                                    9
financial assistance given to eligible students with no obligation to

repay) was part of the mother’s gross income for purposes of child

support. Id. at 796-97. But in reaching this conclusion, the court

focused on the language of Virginia’s child support statute that

states gross income includes “all income from all sources” and the

fact that Virginia courts had interpreted this language to mean any

source of income “unless specifically excluded.” Id. at 796 (quoting

Frazer v. Frazer, 477 S.E.2d 290, 299-300) (Va. Ct. App. 1996)).

Because the child support statute did not “specifically exclude

federal education grants,” the court there concluded that the

mother’s Federal Pell Grant was part of her gross income. Id. at

797. But see In re Marriage of Syverson, 931 P.2d 691, 698 (Mont.

1997) (concluding that only the portion of a Federal Pell Grant that

exceeded the mother’s tuition bill should be considered gross

income because the Montana child support rule defined gross

income to include “grants . . . intended to subsidize the parent’s

living expenses”) (citation omitted). Because Colorado courts

interpret this state’s maintenance and child support statutes

differently, Oley does not change our analysis. See Davis, 252 P.3d

at 535; Mugge, 66 P.3d at 211.


                                  10
¶ 23   For these reasons, we perceive no error in the district court’s

  exclusion of the GI Bill tuition assistance and book stipend benefits

  from Mark’s gross income for purposes of modifying Mark’s

  maintenance obligation and calculating child support for A.C.J.T.

                             III. Potential Income

¶ 24   Jennifer next contends the court erred in refusing to impute

  additional “potential income” to Mark when determining his gross

  income. We again are not persuaded.

¶ 25   If a party is voluntarily unemployed or underemployed, child

  support and maintenance are calculated based on the party’s

  potential income. § 14-10-114(8)(c)(IV) (maintenance);

  § 14-10-115(5)(b)(I) (child support).

¶ 26   “Potential income” is described as the amount a party could

  earn from a full-time job commensurate with the party’s

  demonstrated earning ability. People in Interest of A.R.D., 43 P.3d

  632, 637 (Colo. App. 2001). In determining potential income, the

  district court may consider several factors, including the party’s

  historical income, education, and work experience. See id.

¶ 27   The district court has broad discretion in determining income,

  and whether to impute income to a party is typically a question of


                                    11
  fact that we will not disturb if supported by the record. See People

  v. Martinez, 70 P.3d 474, 480 (Colo. 2003); see also In re Marriage of

  Connerton, 260 P.3d 62, 66 (Colo. App. 2010).

¶ 28   At the hearing on the motions to modify child support and

  maintenance, Jennifer argued Mark should be imputed income for

  forty hours per week of employment. She also argued that the

  court should consider timber on Mark’s property as a resource

  when determining whether his maintenance obligation should be

  modified due to changed circumstances. In contrast, Mark argued

  that he should not be imputed any additional income because he is

  enrolled as a full-time student at an online college.

¶ 29   The district court rejected Mark’s argument and imputed “40

  hours of employment income” at minimum wage to him (a decision

  not challenged here). Although the court acknowledged that Mark

  had available “timber from a property he owns,” it declined to

  impute any additional amounts to Mark for this “potential income.”

¶ 30   Jennifer argues that the district court should have imputed

  additional potential income to Mark based on his timber ownership.

  In particular, she argues that Mark could receive additional income

  through timber sales, as he did in 2015. But she points us to no


                                    12
  authority supporting her contention that a one-time (or possible

  future) sale of a good should be included as imputed income — in

  addition to forty hours per week of imputed employment income.

  See, e.g., A.R.D., 43 P.3d at 637 (describing potential income as

  related to full-time job); In re Marriage of Jaeger, 883 P.2d 577, 582

  (Colo. App. 1994) (considering historical employment income when

  imputing income).

¶ 31   In any event, Mark testified he no longer received income from

  the timber. And while Jennifer testified Mark “could make a phone

  call and have a check well over a million dollars,” nothing in the

  record shows the amount or value of timber available for sale. So,

  any inferences and conclusions to be drawn from the conflicting

  evidence were for the district court to resolve. In re Marriage of

  Lewis, 66 P.3d 204, 207 (Colo. App. 2003).

¶ 32   We therefore conclude the district court didn’t abuse its

  discretion in declining to impute non-employment income related to

  possible future timber sales. Given this conclusion, we necessarily

  reject Jennifer’s related argument that the court “made no findings

  of fact as to the amount of this potential income.”




                                    13
                    IV. Modification of Maintenance

¶ 33   Jennifer next argues that the district court failed to make

  sufficient findings of fact and conclusions of law in modifying

  Mark’s maintenance. We don’t agree.

¶ 34   The decision whether to modify maintenance is within the

  district court’s sound discretion based on the facts presented. In re

  Marriage of Nelson, 2012 COA 205, ¶ 27. Absent an abuse of that

  discretion, we will not disturb the court’s ruling on review. Id.

¶ 35   A district court may modify maintenance on a showing of

  changed circumstances so substantial and continuing as to make

  the existing maintenance terms unfair. § 14-10-122(1)(a), C.R.S.

  2018; see Nelson, ¶ 26. In making this determination, the court

  must examine the circumstances pertinent to initially awarding

  maintenance under section 14-10-114, including the relevant

  circumstances of both parties. In re Marriage of Kann, 2017 COA

  94, ¶ 73; Nelson, ¶ 26. However, the determination is not the same

  as when making an original award; rather, the issue when

  considering a motion to modify is whether the terms of the original

  award have become unfair. In re Marriage of Weibel, 965 P.2d 126,

  128-29 (Colo. App. 1998).


                                    14
¶ 36   After the hearing on the parties’ modification motions, the

  district court found that since the entry of the initial maintenance

  award, Mark had retired from the military, he was a full-time

  student, and his income had decreased to $3749 per month (from

  $6371 when maintenance was first ordered). See

  § 14-10-114(3)(c)(II), (V); see also § 14-10-122(1)(a).

¶ 37   With respect to Jennifer’s income, the district court concluded

  that she earned roughly the same monthly income at the time of the

  modification hearing as she had at the time the court initially

  awarded maintenance. See § 14-10-114(3)(c)(I), (V); see also

  § 14-10-122(1)(a).

¶ 38   Based on this evidence, the district court found that Mark had

  “shown a change in circumstances under . . . § 14-10-122, which is

  so substantial and continuing as to make the terms of” the original

  maintenance award “unfair.” Applying the maintenance guidelines,

  the district court found that Mark’s “suggested award of $0.00” was

  “fair, equitable, and not unconscionable.”

¶ 39   The district court’s findings sufficiently support its

  determination that substantial and continuing changed

  circumstances made the initial maintenance award unfair. See


                                     15
  Kann, ¶ 73. We therefore don’t agree with Jennifer that the district

  court “made no findings regarding the factors listed under [section]

  14-10-114(3)(c).”

                             V. Conclusion

¶ 40   We affirm the district court’s order terminating Mark’s

  maintenance obligation and modifying his child support obligation.

       JUDGE ASHBY and JUSTICE MARTINEZ concur.




                                   16
