5-Year Limit to Modify Child Support Applies Retroactively

Two rolls of cash next to words "child support."

Change of Custody & Retroactive Child Support

Normally, a child support modification is only prospective – i.e. it applies to payments due after the motion was modified, rather than to past support. C.R.S. 14-10-122(1)(a) provides:

“except as otherwise provided in subsection (5) of this section, the provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of changed circumstances that are substantial and continuing”

The one exception, from subsection 5, was when there had previously been a voluntary change of physical care (i.e. “custody”). In that case, the law provided the court with discretion to modify support back to the change, but did not require it. In 2017, the modification statute changed, and the change of physical care provision in C.R.S. 14-10-122(5) now reads:

“when a court-ordered, voluntary, or mutually agreed upon change of physical care occurs, the provisions for child support of the obligor under the existing child support order, if modified pursuant to this section, will be modified or terminated as of the date when physical care was changed. The provisions for the establishment of a child support order based on a court-ordered, voluntary, or mutually agreed upon change of physical care may also be entered retroactively to the date when the physical care was changed… The court shall not modify child support pursuant to this subsection (5) for any time more than five years prior to the filing of the motion to modify child support, unless the court finds that its application would be substantially inequitable, unjust, or inappropriate.” (Emphasis added).

5-Year Limit on Retroactive Modification Applies Retroactively

The 5-year limit on a retroactive modification in italics above was the central issue in a brand-new published decision from the Colorado Court of Appeals, Weekes.1In re: Marriage of Weekes, 2020 COA 16.

In Weekes, the parties’ daughter lived with the mother from divorce in 2001 until 2008, when she went to live with the father, remaining with him until her emancipation in 2011. The father did not seek child support at that time.

The mother subsequently requested judgment for $85,000 in unpaid child support, apparently covering the time the child lived with the father. However, she did not serve father at his correct address, and he did not learn of the judgment until 2016. He attempted unsuccessfully to get the court to set aside the judgment, and then in 2017, the father had retained counsel who filed a motion to modify the support retroactive to 2008.

The prior version of the statute in effect in 2008, when the daughter’s custody changed to father, did not include any express limitation on a parent’s ability to seek retroactive support. However, by 2017 when the father filed his motion to modify, the statute had changed to the language above, imposing a maximum 5-year retroactive period “unless the court finds that its application would be substantially inequitable, unjust, or inappropriate.”

The trial court denied the father’s motion to modify, finding that he was seeking a change beyond the 5-year limitation, and did not address whether the statutory exception that the 5-year limitation was unjust in that case. Father appealed, arguing that the 5-year limitation did not apply retroactively. The appellate court rejected father’s arguments, holding that the amendment was intended to apply to any motion to modify child support filed after 2017, even if the change in custody occurred prior to that. ¶ 29.

The Court of Appeals similarly rejected father’s argument that retroactive application of the statute would violate the constitutional prohibition on retroactive legislation:

“Section 14-10-122(5) is remedial in nature and its limitation provision is simply a limitation on the remedy — regardless of when the change in custody occurred, relief is limited to the five years preceding the filing of the motion. The application of a limitation on a remedy to an existing claim for relief does not violate the prohibition against retroactive legislation.”

Weekes.2In re: Marriage of Weekes, 2020 COA 16, ¶ 35.

Hearing Needed on Whether Limitation is Unjust

However, the father prevailed on his final argument – the trial court improperly dismissed his motion without setting a hearing on whether it would be unjust to apply the 5-year limitation. The court should have considered the facts at a hearing on whether the father’s delay was justified in view of his not knowing of the mother’s judgment.

Award-Winning Family Law Attorney In Colorado Springs

U.S. News & World Report calls Graham.Law one of the Best Law Firms in America, and our managing partner is a Colorado Super Lawyer. Our family law attorneys have years of experience helping clients navigate the Colorado legal system. We know Colorado divorce & family law inside and out, from complex multi-million dollar property or child custody cases to basic child support modifications.

For more information about our top-rated El Paso County family law firm, contact us by filling out the form on the right or calling us at (719) 630-1123 to set up a free consult, or click on:

Colorado Family Law. Period.

Testimonials

  • Excellent discussion; fully answered all my questions with examples I could clearly understand

    Jane Rohr Avatar
    Jane Rohr
    3/26/2020
  • Carl Graham is by far the best divorce attorney I have used and would highly recommend him to anyone who is looking for an ethical, knowledgable, fair attorney. My case was not your normal circumstanc... read more

    Gary Oldguy Avatar
    Gary Oldguy
    3/17/2020
  • As a former military spouse trying to collect my share of my ex's military retirement from California when the divorce decree and all the supporting documents were filed in Colorado i was apprehensive... read more

    Janine Pandher Avatar
    Janine Pandher
    3/01/2020
  • Where do I begin? Well AFTER have a consultation with another attorney ( who made me feel as though i was undeserving of his expertise) I was extremely apprehensive when coming to Graham Law. This was... read more

    Chris Whitfield Avatar
    Chris Whitfield
    2/07/2020
  • Mr. Carl Graham, Cindi (his paralegal), and the rest of his office staff helped us with a military divorce. Mr. Graham is very knowledgeable about military ways and processes. I appreciated the fact... read more

    Shelle Dier Avatar
    Shelle Dier
    1/08/2020
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
    11/26/2019
  • If you are searching for a divorce lawyer, first I would like to say I’m sorry you are going through this. It isn’t and easy road. I know sometimes things just don’t work out to save your marriage. Ho... read more

    Trevor Lisby Avatar
    Trevor Lisby
    10/30/2019
  • I called Graham law firm to schedule a consultation and spoke with Corinna. When beginning your search for information with any family matters there are many questions and a sense of anxiety of the u... read more

    Kathlena Williams Avatar
    Kathlena Williams
    8/26/2019
  • I was divorced in CO but moved to TX & had issues with my divorce decree from a previous attorney- after referrals from several other firms in CO regarding the best military law firm I went with Graha... read more

    Sarah DeLorean Avatar
    Sarah DeLorean
    8/26/2019
  • Very helpful initial meeting.

    Steven Babbitt Avatar
    Steven Babbitt
    6/26/2019
  • Carl and his team are awesome and super easy to work with. His knowledge is tremendous and he quickly handled my case despite me being across the country. I would do business with his team again and... read more

    Michael Brooks Avatar
    Michael Brooks
    5/26/2019
  • I was impressed by Graham Law in general but most impressed with Brian Boney. Brian is an excellent family law attorney. Attentive, detail-oriented, and hard-working, Brian surpassed my expectations f... read more

    Robert Weeks Avatar
    Robert Weeks
    5/26/2019
  • Mr. Grahm was professional, knowledgable and very prepared. He was also kind and understanding. He knew his military in's and outs. Because of this is got exactly what I was asking for... a swift a... read more

    MAMCO STAFF Avatar
    MAMCO STAFF
    4/26/2019
  • I had the unpleasant task of taking my ex back to court. Carl was the person for the job. His attention to detail and professionalism got me the result I needed. Sincere thanks to Carl and his great s... read more

    Lisa Bruinsma Avatar
    Lisa Bruinsma
    4/26/2019
  • This firm is quite wonderful....very family and military oriented. Compassionate and patient, very understanding and will go to bat for you!!!!! Give them a call!!!!!

    Teresa Wilkie Avatar
    Teresa Wilkie
    4/26/2019
  • Brian did an amazing job helping me with a personal matter! Its not the first time I ask Brian for help, and every time he exceeds my expectations! Thank you for your kindness, understanding and suppo... read more

    Iryna Volynets Avatar
    Iryna Volynets
    4/26/2019
  • Divorce is never easy, but Carl and his warm team helped me navigate this very difficult time. This was a military divorce, so Carl's expertise helped me understand exactly what my options were as a f... read more

    Kara Longmire Avatar
    Kara Longmire
    4/26/2019
  • I have had two occasions that I have needed Carl Graham's assistance with child support issues and both times Mr. Graham and his team were amazing. Mr. Graham is straight forward and honest. I highly ... read more

    Jason Ragland Avatar
    Jason Ragland
    4/26/2019
  • Can't thank the team enough.

    Kevin Czarnecki Avatar
    Kevin Czarnecki
    4/26/2019
  • Very professional and extremely supportive throughout my needs.

    Doyle McNeil Avatar
    Doyle McNeil
    4/26/2019

Contact