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In re Marriage of Fain6/7/1990
Opinion by Justice HODGES.
Terrence L. Fain (husband) appeals the permanent orders entered upon the dissolution of his marriage to Jacki E. Fain (wife). The major issue raised is whether the payments which husband receives as a result of a structured settlement of a personal injury claim are income under the child support guidelines. And, as a corollary, if these payments are income for the purpose of the guidelines, may the court impute an additional amount to this income because it is tax free. We affirm in part and reverse in part.
Prior to his marriage and while working for his employer, husband suffered spinal injuries in a helicopter crash which left him paralyzed from the waist down. As a result of these injuries and military service injuries, husband receives social security disability and veterans' administration disability payments totalling $903 per month. In addition, from his plane crash injury settlement, he receives semi-annual payments of $22,400. None of these payments are taxed by the Internal Revenue Service or the State of Colorado. These benefits, having arisen from injury claims prior to the marriage, were treated by the trial court as the husband's separate property for property division purposes.
I.
First, husband asserts that his child support obligation should be determined based only on his social security and veterans' administration disability payments. He argues that his payments from his personal injury settlement constitute property and, hence, are not income for child support purposes. We disagree.
Under the holding of In re Marriage of Fields, 779 P.2d 1371 (Colo. App. 1989), an unliquidated personal injury claim arising during the marriage is marital property and any future benefits to be received therefrom may be divided by the trial court on a percentage basis. We reject the husband's argument that the Fields case impliedly is authority for his contention that the plane crash injury payments he receives are his separate property and that they may not, therefore, be considered in determining the amount of his child support payments. Unlike the situation in Fields, the issue here is not what may or may not be marital property for property division purposes. The issue rather is whether these payments are a financial resource of the husband that may be considered in setting the amount of his child support payments.
Section 14-10-115(7)(a)(I)(A), C.R.S. (1987 Repl. Vol. 6B) provides that "gross income" includes "income from any source and includes, but is not limited to . . ." the items specifically enumerated therein. Therefore, although social security benefits and disability benefits are expressly included as "gross income," § 14-10-115(7)(a)(I), by its plain language, also includes all payments from a financial resource, whatever the source thereof. In addition, the more specific definition of "gross income" in § 14-10-115 prevails over other definitions for federal and state income tax purposes. See § 2-4-205, C.R.S. (1980 Repl. Vol. 1B).
While the General Assembly expressly excluded certain benefits from the definition of "gross income," see § 14-10-115(7)(a)(I)(B), C.R.S. (1986 Repl. Vol. 6B), the statute does not provide an exclusion for personal injury benefits. Therefore, we agree with the trial court that husband's personal injury settlement payments are a financial resource that constitutes "gross income" under the child support guidelines.
II.
Alternatively, husband maintains that the trial court abused its discretion when, in
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