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In re J.R.T.6/2/2003
JUDGMENTS AFFIRMED
EN BANC
This opinion consolidates two cases in which the trial courts modified the amount of child support that Jason Martinez was required to pay for two of his children, J.A. and J.R.T. In both cases, the trial courts held that Martinez was voluntarily underemployed after he had been terminated from two jobs in Denver for knowingly violating company policy and had subsequently taken a lower paying position in Pueblo. The trial courts imputed income to Martinez based on the first--and highest paying--job from which he was fired.
Holding that Martinez was not "voluntarily underemployed" simply because he had been fired, the court of appeals reversed both trial courts. The court of appeals concluded that the trial courts should have examined "the reasonableness of father's attempts, if any, to obtain comparable employment and pay following his firings." In re J.R.T., 55 P.3d 217, 220 (Colo. App. 2002). The unpublished second case, In re J.A., relied heavily on the published case.
We agree with the court of appeals. The income imputation inquiry must start with whether the parent is shirking a child support obligation. Is the parent unreasonably foregoing higher paying employment that he or she could obtain? If not, the child support obligation calculation commences with actual gross income. If the parent is shirking a child support obligation, the trial court must determine what the parent can reasonably earn and contribute to the child's support. In determining whether to impute income to a parent when considering a child support modification order, the trial court must examine all relevant factors.
I.
In April 1995, the trial courts first set child support in the amount of $308 per child per month for J.A. and J.R.T. At that time, Martinez was employed in Denver by Denver Mattress Company, earning $1866 per month. In 1998, Martinez was promoted to store manager, and his salary increased to $4510 per month and the child support order for J.A. was ultimately modified accordingly. Shortly afterwards, Martinez was fired for violating company sexual harassment policy by trying to resolve a dispute between two subordinates without reporting the alleged harassment to the legal department and by engaging in inappropriate conversations.
Next, Martinez accepted a position as an assistant store manager with A World of Tile in Denver, where he earned $2648 per month. Martinez was asked to resign when he failed to make timely bank deposits of company funds, after having been warned against such behavior. In both cases, Martinez signed letters following his termination or resignation in which he admitted wrongdoing and acknowledged awareness of the company policy he had violated.
In October 1999, after being fired a second time, Martinez looked for a job in Denver for a week or two, but he needed money immediately to pay rent for himself, his current wife, and one child. Martinez decided to move to Pueblo, where J.A. and J.R.T. reside, to live with his wife's family. Martinez obtained a retail job in Pueblo, earning approximately $2167 per month.
In November 1998, the trial court entered a default order increasing child support due for J.A. based on a monthly income of $4510. Then, Martinez moved to modify child support to decrease the amount owed. The trial court found that Martinez was voluntarily underemployed under section 14-10-115(7)(b)(I), 5 C.R.S. (2002), so it set child support based on an imputed monthly income of $4500, based on his income before being fired from Denver Mattress Company.
In August 2001, another trial court modified support owed for J.R.T. on mo
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