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In re Marriage of McCord12/7/1995
In this post-dissolution of marriage proceeding, David L. McCord (father) appeals the order modifying his child support obligation and awarding Deborah A. McCord (mother) her attorney fees. We dismiss the appeal in part, affirm the trial court's order, and remand the cause for further proceedings.
The parties' marriage was dissolved in 1988. Custody of their minor child was awarded to mother, and father was ordered to pay $300 per month in child support. At the time of the dissolution, father was employed as a construction worker and was earning approximately $16,400 per year. Mother was earning approximately $14,500 per year as a clerical worker.
In April 1994, father won an annuity worth $2 million in the Colorado State Lottery and received his first installment payment of $50,000.
Mother thereafter filed a motion seeking a modification in child support, alleging that father's increased income constituted a material change in circumstances. She also requested that the magistrate order father to pay his share of the child's unreimbursed medical expenses in the amount of $1,721.02.
After an initial hearing on June 3, 1994, not attended by father or his counsel, the magistrate ordered father to pay $1,452 of the unreimbursed medical expenses. However, because father had not appeared for the hearing, the magistrate did not address mother's request for a modification in child support.
At a hearing on June 24, father and his counsel appeared and presented evidence regarding father's lottery winnings and his decision, upon learning of his good fortune, to quit his job and become "self-employed." Mother testified regarding her employment and financial resources. She also presented evidence regarding the attorney fees she had incurred in seeking a modification of child support.
Based on the evidence presented at the hearing, the magistrate concluded that mother's gross monthly income was $952. The magistrate determined that father was voluntarily unemployed and imputed to him the annual income he had earned before his resignation. The magistrate further found that father's lottery winnings constituted gross income for purposes of calculating child support and that his gross monthly income from his lottery proceeds and employment totalled $5,538. Applying the child support guidelines, § 14-10-115, C.R.S. (1987 Repl. Vol. 6B), the magistrate increased father's child support obligation to $781 per month and, in addition, ordered father to pay $1,300 of mother's attorney fees.
On petition by father, the district court affirmed the magistrate's findings and order.
I.
Father first contends that the magistrate erred in ordering him to pay $1,452 of the uninsured portion of the child's extraordinary medical expenses pursuant to § 14-10-115(12)(a), C.R.S. (1987 Repl. Vol. 6B). We dismiss this portion of the appeal.
The powers of magistrates and appellate review of their decisions are governed by the Colorado Rules for Magistrates (C.R.M.). C.R.M. 6(e)(5) provides that a party to a proceeding conducted by a district court magistrate shall not be entitled to appellate review of any order or judgment entered in that proceeding, unless that party has first filed a timely motion for district court review of the magistrate's order. See also In re Estate of Burnford, 746 P.2d 51 (Colo. App. 1987). Such a motion for review must be filed within 15 days of the date of the magistrate's order. C.R.M. 6(e)(2).
Here, the magistrate entered a written order on June 3, 1994, directing father to
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