IN THE COURT OF APPEALS OF IOWA
No. 14-0225
Filed June 24, 2015
IN RE THE MARRIAGE OF CHAD FRASHER
AND JENNIFER FRASHER
Upon the Petition of
CHAD FRASHER,
Petitioner-Appellee,
And Concerning
JENNIFER FRASHER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Delaware County, Bradley J.
Harris, Judge.
A mother appeals a modification order reducing her ex-husband’s child
support obligation and changing the visitation schedule. AFFIRMED.
Denis D. Faber Jr., of Denis D. Faber Jr., P.C., Dubuque, for appellant.
Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,
for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.
Jennifer Frasher challenges a district court order modifying the monthly
child support obligation of her ex-husband Chad Frasher and changing his
visitation schedule with their six-year-old daughter A.F. The court reduced
Chad’s monthly support payments from $800 to $440 based on the less lucrative,
yet steadier employment he secured since the divorce. Jennifer argues the court
should impute an income consistent with Chad’s true earning capacity. She also
asks us to eliminate Chad’s midweek visitation, scheduled during the weeks he
does not have extended weekend visitation, because she contends the court’s
amended order was a mistaken reading of the parents’ stipulation. Jennifer also
seeks her trial and appellate attorney fees. Chad requests appellate attorney
fees.
The district court determined Chad’s reduction in income was not “brought
about by improper intent or reckless conduct.” In our de novo review of the
record, deferring to the district court’s credibility determinations, we agree and
affirm the child support provision in the modification order. Likewise, we affirm
the amended visitation provision because allowing Chad a midweek visit was the
practice of the parties and remains in A.F.’s best interest.
Because of the parity in the incomes of the parties, we affirm the district
court’s denial of trial attorney fees to Jennifer and decline to award either party
appellate attorney fees.
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I. Background Facts and Proceedings
Chad and Jennifer were married in 2003 and had one child, A.F., who was
born in 2007. The couple divorced in 2011 and the decree awarded physical
care of A.F. to Jennifer with liberal visitation for Chad.
At the time of the dissolution, Chad was a heavy machine operator and
belonged to the International Union of Operating Engineers Local 234, which
would place him in temporary jobs, some in-state and some out-of-state. The
dissolution court described Chad as “very lucky in his employment” over the past
few years. Chad asked the dissolution court to calculate his child support using
his in-state salaries, which ranged from $40,000 to $50,000 annually. The court
declined and explained Chad’s “more lucrative income” came from out-of-state
assignments; he sometimes worked six days per week, did not have vacation
time, but did have a seasonal lay-off period during the winter months. The
dissolution court did not find credible Chad’s assertion that he no longer intended
to seek out-of-state employment because of his desire to spend more time with
his daughter. The court noted Chad had not “made much of an effort to return
home to see his wife and daughter even when he is only 90 miles away.”
The dissolution court determined Chad’s annual income to be $90,870—
using a three-year average from 2007, 2008, and 2009. For her part, Jennifer
worked as a teacher for the Dubuque school system and earned $41,000 at the
time of the dissolution trial. Based on these incomes, the dissolution court
ordered Chad to pay $800 per month in child support.
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Chad’s employment remains the issue in this appeal. Before the divorce,
Chad would wait to hear from the union if higher paying, out-of-state jobs were
available, otherwise he was “on the bench” waiting for the next assignment. After
the divorce, Chad took a position with Dubuque’s Fondell Excavating, where he
worked on local sewer projects for eighteen months, hoping the position would
become permanent. But in August 2012, Fondell told Chad that he would be laid
off soon because work was slow. Chad contacted his business agent through
the union, but learned no in-state work was available. So, from August to
November 2012, Chad worked in North Dakota doing pipeline work. During
those four months, Chad was able to exercise visitation with his daughter only
twice.
In February 2013, Chad took a job with Mid-American Energy as an
apprentice welder. In that position, he started working regular hours of 7:00 a.m.
to 4:00 p.m. and earned $23.55 per hour at the time of the modification hearing.
Those wages amounted to an annual income of $50,359. During this time, Chad
continued to make his child support payments of $800 per month.1
On May 2, 2013, Chad filed a petition for modification alleging “a
significant, substantial, and material change in circumstances since entry” of the
decree. Specifically, the petition alleged Chad “obtained new employment
resulting in a decrease in his annual income and a more regular and traditional
work schedule with no lay-off periods in January, February, and March and a
lower wage.”
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By the time of the modification hearing, Jennifer’s salary with the school district had
increased to $49,300 annually.
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The parties appeared before the district court for a modification hearing on
October 16, 2013. Jennifer resisted the modification, arguing Chad intentionally
reduced his income and, therefore, was not entitled to a reduction in his child
support obligation. After hearing the parties’ evidence, the district court found a
substantial change in circumstances warranted a modification of the child support
provisions of the decree and reached the following determination about Chad’s
employment:
When he was laid off from Fondell through no fault of his
own, he elected to take employment which would not require him to
travel as he had been required to do when working with Local 234.
Although his current employment with MidAmerican Energy
resulted in a decrease in income, there has been no showing this
decrease was through improper intent or reckless conduct.
Rather, the court decided Chad’s reduction in income was “due to a legitimate
desire to have steady employment with consistent hours.” The court modified
Chad’s child support payments to a sum of $440 per month.
In the modification order, the court also stated: “The parties now agree
that petitioner shall exercise visitation every other weekend from Friday until
Tuesday morning.” This change incorporated the midweek visitation day into an
extended weekend so the parties could make less trips between their residences,
which were about thirty-five miles apart.
Chad filed a motion to enlarge under Iowa Rule of Civil Procedure
1.904(2), contending the court’s order on visitation should not have eliminated
the midweek visitation day in the weeks when he did not have weekend visitation
with A.F. Under the court’s order, Chad would go ten days without seeking his
daughter.
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Jennifer likewise filed a rule 1.904(2) motion. She favored the change in
visitation to eliminate the midweek visitation day, even in the weeks when Chad
did not have weekend visitation.
In response to the parties’ motions, the court filed an order on January 10,
2014, concluding it had “incorrectly stated the visitation utilized by the parties
prior to the court’s hearing on October 16, 2013.” The court amended its order to
restore visitation for one evening of every week following Chad’s non-visitation
weekends. Jennifer now appeals the child support and visitation issues.
II. Principles of Modification and Standard of Review
A district court has authority to modify a child support order under Iowa
Code section 598.21C (2013) if the parent seeking modification is able to show
“a substantial change in circumstances” which includes “changes in the
employment, earning capacity, income or resources of a party.” Iowa Code
§ 598.21C(1). Additional criteria for modification exists when the court ordered
child support varies by ten percent or more from the amount which would be due
under the child support guidelines. Iowa Code § 598.21C(2).
We review de novo orders addressing applications to modify child support.
In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). Within that de
novo review, we recognize the district court has “reasonable discretion in
determining whether modification is warranted and that discretion will not be
disturbed on appeal unless there is a failure to do equity.” Id. We give weight to
the district court’s findings of fact, especially when they involve discerning the
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credibility of witnesses. In re Marriage of Van Doren, 474 N.W.2d 583, 586 (Iowa
Ct. App. 1991).
A parent seeking to modify the visitation provisions of a dissolution decree
must show a material change in circumstances since the decree and that the
requested change in visitation is in the child’s best interest. In re Marriage of
Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). This burden is less
demanding than if a parent is seeking to change a custodial provision. In re
Marriage of Brown, 778 N.W.2d 47, 51 (Iowa Ct. App. 2009). “The rationale for
this lower standard is found in the prevailing principle that the best interests of
children are ordinarily fostered by a continuing association with the noncustodial
parent.” Salmon, 519 N.W.2d at 96 (citing Iowa Code § 598.41(1)).
III. Analysis of Jennifer’s Claims
This appeal requires us to address three issues: the modification of child
support, the modification of visitation, and attorney fees. We will do so
sequentially.
A. Modification of Child Support
Jennifer argues the district court erred by not imputing to Chad an income
consistent with his “true earning capacity.” She contends Chad voluntarily
abandoned his former career “and the associated remuneration” and, therefore,
the court’s reduction of his child support obligation failed to do equity. Chad
responds that he did not voluntarily quit his job at Fondell and the only work he
could find in the fall of 2012 was in North Dakota, where he was separated from
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his daughter. He urges us to affirm the district court’s decision to figure the child
support obligation based on his actual income at MidAmerican.
On appeal, the parties fight over the applicable case law. Jennifer asserts
there are “no reported cases permitting a reduction when the obligor abandons a
skilled occupation to assume a lower paying position, absent a compelling
reason such as is absent from the record in this matter.” Chad cites several
cases where our court has held an obligor’s decision to take a lower-paying job
was justified by the distance or other sacrifices required to maintain the salary
level used to calculate the original child support amount. See, e.g., In re
Marriage of Blum, 526 N.W.2d 164, 166 (Iowa Ct. App. 1994); In re Marriage of
Fidone, 462 N.W.2d 710, 712 (Iowa Ct. App. 1990).
When asked to modify child support and faced with the decision whether
to use a parent’s earning capacity rather than actual income, a court must
consider if the parent’s inability to earn a greater income is voluntary. See In re
Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa 2006). If the reduction in
income is a “self-inflicted” wound, it does not constitute grounds for modification.
See Blum, 526 N.W.2d at 165.
Like the district court, we do not believe Chad intended to deprive his
daughter of child support or acted with reckless disregard for her well-being
when—after facing a lay off from his excavation job and working far from home
for several months—he secured steady employment with benefits and regular
working hours. See In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993)
(declining to “penalize” parent even when he lost his job due to insubordination
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when he diligently sought new employment). Chad testified he decided to apply
for the MidAmerican position because “it was a steady, year-round job” with
vacations, dependent care, a set hourly schedule, and the eventual possibility of
a promotion. It did not require him to travel outside of Iowa, so he could be
available for midweek evening and weekend visitations with his daughter. Chad
had valid reasons for wanting to stay in Iowa; his disinclination to wait in line for
better-paying, but temporary and unpredictable out-of-state heavy equipment
jobs did not constitute a self-inflicted or voluntary reduction in salary. See Blum,
526 N.W.2d at 166. We affirm the district court’s modification of child support.
B. Modification of Visitation
Jennifer also argues the district court erred in modifying the decree as it
relates to visitation. She alleges the court grounded its decision on a “mistaken
assumption” the parties intended to preserve Chad’s midweek visitation evening
during the work weeks following his non-visitation weekends.
Before the modification trial, the parties informally changed Chad’s
weekend visitations to include an extra day to cut down on multiple trips between
their two homes. But Chad points out on appeal, “[i]t is uncontested that on
those weeks that Chad did not have weekend visitation, he had one mid-week
overnight visitation every Tuesday to Wednesday.”
We affirm the district court’s restoration of the midweek evening visit
between Chad and A.F. following the weekends that she does not spend in his
care. We defer to the district court’s factual determination regarding the parties’
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practice on this point, and also believe allowing maximum continuing contact with
both parents is in A.F.’s best interest. See Iowa Code § 598.41(1).
C. Attorney Fees
Jennifer contends the district court erred in refusing to award her trial
attorney fees. She asserts Chad has an earning capacity nearly double her own.
Trial courts have considerable discretion in awarding attorney fees in a
modification action. In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).
One consideration is the respective abilities of the parties to pay. Id. Jennifer
must show the district court abused its discretion. See id. Because the district
court did not impute a higher income to Chad, Jennifer’s argument concerning
their earning capacities is not convincing. We find no abuse of discretion in
declining to award trial attorney fees.
Both parties ask for appellate attorney fees. An award of appellate
attorney fees is likewise discretionary and acknowledges the parties’ financial
positions. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Because
both parties advanced viable arguments on appeal and both are earning roughly
the same annual income, we believe they should pay their own appellate
attorney fees. Costs are divided equally between the parties.
AFFIRMED.