Military food and housing stipend included in child support computation

In the case of In re Parental Responsibilities of L.K.Y., the Colorado Court of Appeals examined the treatment of military benefits in calculating child support in Colorado.

Under Colorado law, a basic child support figure is calculated using tables that are based on the combined gross income of both parents. The basic child support figure is then divided between the parents in proportion to their percentage shares of the total combined income.

Background and procedural history

The parties, parents of twins born in 2006, established a domestic partnership in California in 2005. In 2008 they moved to Colorado with the children. In 2011 the domestic partnership was ordered dissolved by a California court.

Separate proceedings were then brought in the district court in El Paso County, Colorado, to determine the custodial rights and responsibilities of the parties. The custodial parent filed a request for temporary child support. She was serving in the U.S. Army. Since she was living off base, she also received housing and food allowances from the military in addition to her salary. The magistrate awarded her temporary child support. The magistrate's award included the military allowance as part of the combined gross income of the parties. The noncustodial parent objected to the award and filed an appeal in the Court of Appeals.

Ruling by the Court of Appeals

On appeal, the noncustodial parent argued that the military stipend should not have been included as "income" in computing her child support payment. The Court of Appeals rejected this argument, stating that these payments were considered income within the plain meaning of a Colorado statute that defined gross income. The statutory provisions expressly stated that the income of parent included reimbursement of expenses and in-kind payments that are provided to the parent through an employer.

The noncustodial parent also argued that the military housing and food payments should be considered to be the financial resources of the children and therefore should be deducted from the child support computation. The appellate court also rejected this argument. The appellate court held that the funds were part of the custodial parent's income. They were paid to her as part of her salary. She was free to spend them in any way she saw fit and the noncustodial parent did not offer any evidence to show what portion of these funds had actually been spent to defray the children's basic needs.

Concurring opinion

One judge agreed with the majority's decision, but for different reasons. The judge believed that an inequitable result had been reached in this case. The custodial parent was being reimbursed by the military for her primary living expenses, and yet at the same time she also received an increase in the child support payments because these military reimbursement payments were included in calculating the parties' combined gross income.

The judge decided to uphold the temporary child support award, however, because the noncustodial parent never filed a request with the trial court to deviate from the child support guidelines.

Contact an attorney

Individuals facing a divorce and other family law matter such as child support or child custody are urged to consult with a competent attorney for the protection of their legal rights.