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In re Marriage of Zappanti6/19/2003
BR>
Husband also contends that the trial court erred in failing to apply the coverture fraction to determine the marital portion of his Tier II benefits. We agree that the trial court was required to apply the coverture fraction, and on remand it must do so.
Under all three methods of distribution, the accepted means of calculating the marital share of a pension is to multiply the present value of the pension by the coverture fraction, which is the number of years or months that benefits accumulated during the marriage divided by the total number of years or months that benefits accumulated. In re Marriage of James, 950 P.2d 624 (Colo. App. 1997).
Here, although neither party advised the court that it needed to apply the coverture fraction in valuing husband's retirement or indicated that husband's premarriage service was significant, testimony was nevertheless elicited from husband indicating that the parties married in 1978, that husband began his employment in 1973, and that he stopped working in 1989 when his injury occurred. This information was sufficient for the trial court to determine the applicable coverture fraction.
III.
Finally, we disagree with husband's contention that the trial court erred in calculating his child support obligation.
The trial court based the child support calculation on husband's monthly income from his railroad annuity. Husband complains the calculation was improper because that income was from a previously divided asset. However, the fact that the retirement represented a property interest subject, at least in part, to division does not change its status as an income source to be considered in determining his child support obligation. See § 14-10-115(7)(a)(I)(A), C.R.S. 2002 ("gross income" includes income from any source including, but not limited to, income from pension and retirement benefits); see also In re Marriage of Fain, 794 P.2d 1086 (Colo. App. 1990)(whether or not a structured personal injury settlement is classified as a separate or marital asset, payments received pursuant to that settlement are gross income for determination of child support ).
Husband also argues that the trial court should have offset his support obligation against the benefit amount he receives on behalf of the child. However, because husband retains the payments and is the non-custodial parent, he was not entitled to an offset. See § 14-10-115(16.5), C.R.S. 2002; see_also In re Marriage of Quintana, 30 P.3d 870 (Colo. App. 2001)(offset properly given to husband where Social Security payments for his disability were paid to wife, as the custodial parent, and actually diminished the needs of the children).
Pursuant to § 14-10-113(1)(c), C.R.S. 2002, and In re Marriage of Wells, 850 P.2d 694 (Colo. 1993), the trial court on remand must consider the economic circumstances of the respective spouses at the time of any further hearing in this matter.
We deny husband's request for attorney fees under C.A.R. 38(d).
The judgment is affirmed with respect to the valuation of wife's pension and the calculation of child support . The judgment classifying, valuing, and dividing husband's retirement benefits is reversed, and the case is remanded for further proceedings consistent with this opinion to reconsider the property division.
JUDGE KAPELKE and JUDGE PIERCE concur.
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