Common Issue On Appeal - Child Support Deviations

If a court enters an order with errors of fact or law, then an appeal may be pursued. Some trial court decisions are overturned on appeal and sometimes an appellate court remands a matter to the trial court for reconsideration. It is important to understand that an appeal is not a second bite at the apple. On appeal a court can only evaluate whether there was an error of fact or law in the record below. The Court of Appeals does not conduct a new hearing and can not consider any new evidence.

One common issue on appeal is child support deviation. Divorce and family law courts can deviate from the child support guidelines, though do not do so very often. Sometimes there are questions of whether certain income should be considered for purposes of calculating a child support award. If parental monthly incomes exceed the maximum amount on the child support guidelines, then courts have discretion with regards to child support awards.

In Colorado, child support is determined using child support guidelines set by statute. The formula considers the monthly gross incomes of both parents, the number of children and the amount of time that the children spend with each parent.

Adjustments can be made for certain other expenses like medical insurance coverage work or education-related child care, extraordinary medical or educational costs, and support responsibility for other children.

Determining what is income or how to value it can be complicated. What Colorado considers to be income is broad. Earnings from a second job or from overtime pay, may or may not count as income depending on the circumstances. If overtime is required by the employer then it counts as income. If it is discretionary, then generally it does not. Income from second jobs over 40 hours a week does not count. Sometimes if a child has an income source, that can reduce the parental child support obligation. If a court determines that a parent is voluntarily underemployed or unemployed, then income might be imputed to a parent at what they are capable of earning.

The child support guidelines create a rebuttal presumption of accuracy and absent complicated income calculations matters, courts do not have a lot of discretion in deviation. However courts may deviate. If a court does, it has to state specifically the reasons for the deviation. For example, if a parent has extraordinary out-of-pocket medical expenses for him or herself or another family member, that might reduce income available for support of a child. The legal standard for deviation is that the guidelines result would be “inequitable, unjust, or inappropriate.”

How can an attorney help? An attorney can assist you in an appeal by identifying any potential errors of fact or law. It is necessary to conduct a detailed review of the trial transcript and evidence admitted to identify such errors. Legal error identification can be difficult to identify for those without an in-depth knowledge of the law.

A Colorado Springs divorce and family law attorney can guide you through Colorado Springs appeals. This allows you to focus on moving forward to a better future rather than on spending your time trying to figure out the overly complex court system. Contact us at 719-344-5523 or complete our online form to set up a free thirty-minute informational consultation.