In Re the Marriage Nimmo
19 Brief Times Rptr. 438, 1995 Colo. LEXIS 44, 891 P.2d 1002 (1995)
Rule of Law:
Under Colorado's child support guidelines, the statutory definition of "gross income," which includes "gifts" from "any source," permits discovery of gifts regularly received by a custodial parent from a dependable source for child support calculations, but not discovery of the new spouse's direct income or payments made for shared household obligations.
Facts:
- A decree of dissolution of marriage was entered on May 4, 1989, for Nick Nimmo and Margaret E. Nimmo (now Margaret E. Seanor).
- The decree approved and incorporated a separation agreement, granting Ms. Seanor primary physical custody and Nimmo sole legal custody of their two children.
- The agreement stipulated that Nimmo would pay maintenance to Ms. Seanor until June 1991, and thereafter would pay child support.
- In October 1991, Ms. Seanor filed a motion to increase child support payments.
- In November 1991, Nimmo submitted interrogatories to Ms. Seanor, seeking information about her income, specifically requesting details on all gifts (e.g., jewelry, clothes, entertainment, travel, restaurant meals) provided by her present spouse, Mr. Seanor, to her or the children.
- Nimmo's interrogatories also requested a list of all amounts paid by Mr. Seanor directly to Ms. Seanor or to third parties from which Ms. Seanor received a benefit (e.g., attorney's fees, maid service, cable television, mortgage payments, car/home repairs, insurance, utilities).
- Ms. Seanor failed to provide answers to Nimmo's interrogatories.
Procedural Posture:
- Ms. Seanor filed a motion in the trial court (district court) to increase Nick Nimmo's child support payments.
- Nimmo filed a motion to compel discovery after Ms. Seanor failed to answer his interrogatories regarding her income, including gifts from her new spouse.
- The trial court denied Nimmo's motion to compel, ruling that Mr. Seanor's income and contributions were immaterial and that discovery would invade Mr. Seanor's privacy.
- The trial court granted Ms. Seanor's motion, increasing Nimmo's child support payments to $1,341 per month plus $4,906 in back payments.
- Nimmo appealed the trial court's decision to the Colorado Court of Appeals.
- The Colorado Court of Appeals (appellee) affirmed the trial court's denial of Nimmo's motion to compel discovery, finding his definition of income too broad and emphasizing the common law rule against considering third-party income.
- The Supreme Court of Colorado granted certiorari to review the Colorado Court of Appeals' decision.
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Issue:
Does the statutory definition of 'gross income' for child support purposes, which includes 'gifts' from 'any source,' permit discovery of a custodial parent's present spouse's payments to or for the custodial parent, even if the third-party's income is not directly discoverable?
Opinions:
Majority - Justice Erickson
Yes, the statutory definition of 'gross income' for child support purposes does permit discovery of gifts regularly received by a custodial parent, as 'gross income' includes income 'from any source' and expressly lists 'gifts.' While the common law rule that third-party income is not considered in child support remains, the focus under the guidelines is on the existence of money available to the parent, not its source. The court adopts the rule from Barnier v. Wells that a gift, if 'regularly received from a dependable source,' may properly be used to determine a child support obligation. Nimmo's discovery requests were 'reasonably calculated to lead to the discovery of admissible evidence' to establish whether Ms. Seanor receives such regular and dependable gifts. Therefore, Nimmo may discover the existence of Ms. Seanor’s income, whatever the source, to attempt to prove that any gifts are regularly received from a dependable source. However, this discovery does not extend to Mr. Seanor’s income or amounts he pays to third parties for shared household expenses (like cable television, mortgage payments, or utilities). Such payments are considered Mr. Seanor satisfying the household’s obligations, not making a gift of income to Ms. Seanor, and their discovery would be an indirect and impermissible attempt to determine Mr. Seanor’s income. Isolated, irregular tokens or mementos are also not considered 'gifts' for child support purposes and are not discoverable due to their speculative nature and irrelevance. The court affirmed the denial of discovery of Mr. Seanor’s income but reversed the denial of discovery regarding Ms. Seanor’s income, specifically regular and dependable gifts she may receive.
Concurring-in-part-and-dissenting-in-part - Justice Mullarkey
No, none of the information requested by Mr. Nimmo, including direct payments from Mr. Seanor to Ms. Seanor or payments to third parties for household expenses, should be discoverable because such expenses do not constitute 'income' to Ms. Seanor under the Uniform Dissolution of Marriage Act (UDMA) child support guidelines. The guidelines aim to calculate child support based on the parents' combined adjusted gross income as if they were in an intact household, making the stepparent's income and support irrelevant. Allowing such discovery effectively imputes support obligations to the stepparent, which contradicts existing law that stepparent income is not considered unless the child is adopted. Furthermore, the discovery attempt is an impermissible circumvention of the trial court’s finding that Ms. Seanor was not intentionally unemployed or underemployed, and therefore, income should not be imputed to her. The payment of ordinary household expenses by one spouse is a contribution to the family unit, not a 'gift' from one spouse to another, regardless of whether it's paid directly to the spouse or to a third party. The dissent also disagrees with the majority's definition of 'gift' as requiring regularity and dependability, asserting that a gift can be a single transaction as suggested by the Colorado gift tax statute.
Analysis:
This case significantly clarifies the scope of discoverable income for child support purposes under Colorado law, particularly concerning gifts received by a custodial parent from a new spouse. By adopting the 'regularly received from a dependable source' test, the court balances the need for accurate income assessment to ensure adequate child support with the privacy interests of third parties. This ruling establishes a clear line, permitting discovery of direct, recurring gifts while explicitly disallowing inquiry into a new spouse's general income or contributions to shared household expenses, thus limiting the potential for intrusive and irrelevant discovery requests in future cases. The case reinforces that the child support guidelines focus on the parent's available income, regardless of source, but strictly defines what constitutes such income when a third party is involved.
