of Tooker

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