IN THE COURT OF APPEALS OF IOWA
No. 16-2180
Filed December 6, 2017
IN RE THE MARRIAGE OF JENNIFER LYNN GEORGE
AND ADAM GEORGE
Upon the Petition of
JENNIFER LYNN GEORGE,
Petitioner-Appellant,
And Concerning
ADAM GEORGE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David M. Porter,
Judge.
A mother appeals a district court ruling on her modification petition and the
father’s counterclaim for support modification. AFFIRMED AS MODIFIED.
Elizabeth A. Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des
Moines, for appellant.
Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for
appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
MULLINS, Judge.
Jennifer George appeals a district court ruling on her modification petition.
The district court made limited modifications to the visitation schedule and
modified the child-support award using Jennifer’s earning capacity and Adam
George’s actual earnings. Jennifer argues the visitation schedule should be
further modified for purposes of consistency and the child-support modification
resulted in substantial injustice. Adam argues the modification petition was
correctly denied and the child support award was correctly modified.
I. Background Facts and Proceedings
Jennifer and Adam were married for nearly twelve years. The parties
share two children, born in 2005 and 2009. Jennifer and the parties’ two children
moved to Iowa in March 2013, and have lived with Jennifer’s parents since
relocation. The parties dissolved their marriage by stipulation entered on July 3,
2013, in Harris County, Texas. Adam moved to Iowa in July 2013, shortly after
the dissolution. Adam married his current wife, Elizabeth, in November 2014.
Jennifer became a licensed teacher in Iowa in 2001 and was relicensed
upon her return to Iowa in 2013. Although Jennifer did not work outside the
home for the last three to four years of the parties’ marriage, she is now
employed as a substitute teacher in the West Des Moines School District.
Jennifer also works part-time at her church and as a server at a restaurant.
During the marriage, Adam worked as a pilot for ExpressJet. He began working
for Spirit Airlines in February 2015. This change resulted in a salary reduction of
more than $38,000.00 for two consecutive years. Elizabeth is a business analyst
at Mercer.
3
Jennifer filed a petition to modify the original decree on May 6, 2014. She
requested the court to modify the visitation schedule from a non-traditional
system of Adam choosing certain times when he is not working to a traditional,
every-other-weekend visitation schedule. Jennifer made a number of other
claims for a more structured visitation schedule, including a right of first refusal
provision for any time a parent cannot exercise visitation and a requirement that
the children be with the parent, not “girlfriends, step-parents or random
babysitters.” Adam argued no significant changes had occurred to warrant
visitation modification that had not been within the contemplation of the court that
entered the original decree. Adam counter-claimed for a reduction in his child
support based on a substantial and material change in circumstances of more
than ten percent in the amount he should be required to pay. He made other
claims including, but not limited to, a proposed requirement that the parents
agree on all medical, mental health, and chiropractic care, and extracurricular
sports and clarification on claiming the children for tax purposes.
The district court found substantial and material changes in circumstances
had occurred regarding the visitation schedule since the entry of the dissolution
decree. The court also found a substantial and material change in circumstances
had occurred “in that Respondent’s child support obligation does vary by 10%
and should be and is hereby modified pursuant to Iowa Code § 598.21(C)(2)(A)
[(2014)].” The district court modified the visitation provisions by removing veto
power on parenting time, and concluded that the variable nature of Adam’s work
hours made the schedule proposed by Jennifer impractical. The holiday
schedule was also modified because the court found it was “in the children[s’]
4
best interest to be with either [Jennifer] or [Adam] on holidays and special
occasions.” Adam’s child support was reduced as of January 1, 2017, from
$1144.84 to $526.46, and would raise to $700.76 as of March 1, 2017, based on
Adam’s expected raise in income.
Jennifer appeals.
II. Standard of Review
Review is de novo, in which we examine the entire record anew. Iowa R.
App. P. 6.907; In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981).
Weight is given to factual findings of the trial court, especially when concerning
the credibility of witnesses, but we are not bound by those findings.1 Nicolou v.
Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994).
III. Modification of Visitation
Jennifer argues her request for a structured visitation schedule will not
change the amount of time Adam spends with the children, but will simplify the
schedule for the children. Jennifer notes three counselors have recommended a
set schedule is in the children’s best interests. Jennifer states that Adam’s time
is often selected on weekends, and includes a significant amount of time when
he is traveling for work.2 She argues a set schedule, one day a week and every
other weekend, for Adam’s visitation, would benefit the boys. Finally, Jennifer
notes the Christmas-time schedule formulated by the district court has a two-hour
1
The decree filed by the court made no credibility findings, and only limited facts. The
decree did not separately state conclusions of law. See Iowa R. Civ. P. 1.904(1).
2
Jennifer takes issue with Adam selecting visitation time when he is traveling for work.
Jennifer alleges that during this time the children are with Elizabeth, not Adam, and the
district court’s removal of her veto power leaves her with no ability to override Adam’s
choice.
5
overlap on Christmas Day. Jennifer asks that the overlap be changed so each
day, Christmas Eve and Christmas Day, lasts from 10:00 a.m. until 10:00 a.m.
the following day.
Adam argues the district court correctly found no material change in
circumstances and therefore denied Jennifer’s proposed visitation schedule and
request for modification.3 Adam does not specifically resist Jennifer’s request to
clarify the overlapping Christmas hours.
Upon our review of the record, we find the overlapping time on Christmas
Day is the result of a clerical error. We correct the Christmas Day time to
December 25 at 12:00 p.m. to December 26 at 12:00 p.m. Cf. In re Marriage of
Hansen, 733 N.W.2d 683, 703 (Iowa 2007) (correcting a clerical error).
To prevail on a petition to modify visitation, a “petitioner must show there
has been a change of circumstances since the divorce decree.” Donovan v.
Donovan, 212 N.W.2d 451, 453 (Iowa 1973). “However as to modification of
visitation rights as compared to custody changes the general rule is that much
less extensive change of circumstances need be shown in visitation right cases.”
Id. Changes since entry of the original decree must be material changes. In re
Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994). “Generally, a
much less extensive change of circumstances need be shown in visitation rights
cases.” In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa 1985). Courts
should consider the best interests of the child, which “ordinarily requires
3
This is incorrect. The district court ruling states in finding seven, “After hearing the
statements of the parties, their witnesses, and counsel, and reviewing the exhibits
presented by each party, the Court finds that there have been significant material
changes in circumstances since the entry of the Dissolution of Marriage Decree
concerning any change in the visitation schedule.”
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continuing association with his noncustodial parent unless the contrary is clearly
shown.” Donovan, 212 N.W.2d at 453. Iowa courts consider a number of factors
to rule on modification. See, e.g., Jerome, 378 N.W.2d at 305–06 (weighing
factors relating to the ability of both parents to work in a geographic area, history,
and motivation of one parent to move the children out of the area); Donovan, 212
N.W.2d at 453 (considering the ages of the children, a parent’s new-home
environment, and a possibility of a better relationship being established between
one parent and the children); Nicolou, 516 N.W.2d at 909 (relying on credibility
determinations made by the district court regarding one parent who influenced
negative feelings the child held for the other parent).
Jennifer’s argument revolves around the unstructured and unpredictable
nature of Adam’s visitation time. Adam argues that, at the time of the original
stipulation, his unpredictable schedule was the very reason for the unstructured
visitation agreement, and was contemplated in the original decree. Although
Adam changed employers after the entry of the original decree, he is still a pilot
with a variable work schedule. The original decree describes the process for
Adam to choose his visitation as follows:
Adam George shall provide a copy of his work schedule within 48
hours after receipt of his next month’s schedule. For the months of
January, February, March, April, May, September, and October of
each year Adam George shall provide Jennifer George with notice
of his 10 day selection possession period within 48 hours after
receipt of his next month’s work schedule.
It is apparent that the Texas court, and both parties, were well aware of the
unstructured nature of Adam’s work schedule. Thus, the unpredictability of
visitation was something the original court understood and there has been no
7
material change in circumstances. Accordingly, we agree with the district court
that, although material changes have occurred since the entry of the original
stipulated decree to warrant the removal of both parents’ veto power and
specifically designate holiday time, the structured schedule Jennifer proposes
would not better serve the best interests of the children.
IV. Child Support
Jennifer argues the district court erred in imputing income to her, but not
to Adam.4 She relies on Adam’s voluntary employment change and resulting
income reduction. She further argues the district court made no written finding
that “if actual earning were used, substantial injustice would occur or adjustments
would be necessary to provide for the needs of the child[ren] or do justice
between the parties.” Iowa Ct. R. 9.11(4). Jennifer argues she has never made
the $45,000.00 salary imputed to her and she is not intentionally underemployed.
Ultimately, Jennifer argues child support should be calculated using her actual
income of $28,000.00.
4
Jennifer makes two more requests that are not resisted. Jennifer requests we correct
the discrepancy between the dates the modified child support is to begin on pages two
and eight of the district court order. On page two, the court found support should be
modified to $526.46 beginning January 1, 2017. On page eight, the court ordered the
$526.46 child support “shall commence on the first day of the month following entry of
the Decree.” The district court e-filed the modification order at 6:15 p.m. on
November 30, 2016. We believe the page eight wording was boilerplate language, and
the January 1, 2017, specific finding on page two was the true intent of the court and
should control.
Jennifer also requests that the district court’s failure to issue an income
withholding order should be corrected and an amended order issued pursuant to Iowa
Code 598.22(2). We find no record of this issue being raised before the district court.
Accordingly, the issue has not been properly preserved for our review. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate
review that issues must ordinarily be both raised and decided by the district court before
we will decide them on appeal.”). Furthermore, there is no need for us to take action
because Jennifer is free to request such an order from the district court at any time.
8
Adam argues the district court correctly used Jennifer’s earning capacity
to calculate the child-support award. Adam relies on In re Marriage of Hart, in
which this court concluded that a mother’s decision to leave full-time employment
and return to school was not made for the purpose of reducing her child-support
obligation, and held the district court properly used her minimum income for the
calculation. 547 N.W.2d 612, 615 (Iowa Ct. App. 1996); see also In re Marriage
of Blum, 526 N.W.2d 164, 165–66 (Iowa Ct. App. 1994) (finding father had valid
reason for resisting relocation to find a higher-paying job, and pay cut was
neither self-inflicted nor voluntary).
The child support guidelines exist to “provide for the best interests of the
children by recognizing the duty of both parents to provide adequate support for
their children in proportion to their respective incomes.” Iowa Ct. R. 9.3(1). The
amount prescribed by application of the guidelines may be adjusted “upward or
downward, however, if the court finds such adjustment necessary to provide for
the needs of the children or to do justice between the parties under the special
circumstances of the case.” Iowa Ct. R. 9.4. When a noncustodial parent has
more than 127 days of visitation per year, that parent will have a credit applied to
their support obligation in compliance with Iowa Court Rule 9.9. If a court
chooses to vary a custody award from application of the guidelines, it must issue
a written finding stating the application would be unjust or inappropriate. Iowa Ct.
R. 9.11. If that written finding is made, courts will consider voluntary
unemployment or underemployment to impute income to a party to avoid
substantial injustice or make necessary adjustments “to provide for the needs of
the children.” Iowa Ct. R. 9.11(4).
9
To establish a claim for modification of child support, “some material and
substantial change since the date of the decree must be shown in the
circumstances of the parties, financial or otherwise, making it equitable that other
or different terms be imposed.” Donovan, 212 N.W.2d at 453. These may
include “[c]hanges in the employment, earning capacity, income, or resources of
a party.” Iowa Code § 598.21C(1)(a). Courts will consider the factors listed in
Iowa Code section 598.21C(1)(a)–(l). The moving party must establish
substantial changes by a preponderance of the evidence. In re Marriage of
Michael, 839 N.W.2d 630, 636 (Iowa 2013). The changes “must be permanent
or continuous rather than temporary” and must not have been contemplated by
the court entering the decree. Id. Additionally, “a substantial change in
circumstances exists when the court order for child support varies by ten percent
or more from the amount which would be due pursuant to the most current child
support guidelines established . . . .” Iowa Code § 598.21(C)(2)(a).
The original stipulated decree set Adam’s child support obligation at
$1144.84 per month. The district court entered a finding based on Adam’s
testimony that his annual income is $33,264.00, but would increase to
$62,208.00 as of February 2017. The district court found “a substantial and
material change of circumstances in that [Adam]’s child support obligation does
vary by 10% and should be and is hereby modified pursuant to Iowa Code
§ 598.21(C)(2)(a).” Adam’s obligation was reduced to $526.46, but increased to
$700.76 as of March 1, 2017. The district court also awarded Adam a twenty
percent extraordinary visitation credit based on the visitation schedule.
10
On our review of the record, we agree with the district court that Adam’s
child support obligation under the original stipulated decree varies by more than
ten percent of his obligation under the child support guidelines in effect at the
time of the modification hearing and order. Accordingly, we agree with the
district court that a substantial change in circumstances has occurred pursuant to
Iowa Code section 598.21C(2)(a).
Adam testified that his move from Texas to Iowa and employment change
were caused by a desire to live near his children and have a greater earning
capacity in the long run. Iowa courts have held that income reductions with valid
purpose or that are not aimed in bad faith at reducing a child support award may
influence a court’s modification determinations. See Hart, 547 N.W.2d at 614–15
(finding a mother’s decision to leave the work force to return to college and earn
a degree with greater income potential resulted in a proper award of support
based on her minimal income not her earning potential); Blum, 526 N.W.2d at
165–66 (finding a father’s lowered income due to a desire to live near his children
combined with an involuntary reduction in pay did not result in substantial
changes warranting child support modification). We find Adam’s change of
employment to be closer to where his children live was made in good faith, and
his current employment status does not warrant denial of a finding of substantial
change of circumstances.
Although Adam’s probationary salary was temporary, his income as of
February 2017 with Spirit Airlines was still less than the income he earned with
ExpressJet. Furthermore, although Adam expects his income to increase
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throughout his tenure at Spirit, no schedule or specified date of increase is
provided in the record. Thus, the income reduction is permanent.
We now consider whether the district court properly used Jennifer’s
earning capacity to calculate the modified child-support award.5 There is a
rebuttable presumption that the amount of child support resulting from application
of the guidelines is correct. Iowa Ct. R. 9.4. While adjustments may be made,
deviation from the guidelines is generally discouraged. In re Marriage of Jones,
653 N.W.2d 589, 593 (Iowa 2002). In determining whether to use a parent’s
actual income or earning capacity, a court may consider “whether the parent’s
inability to earn a greater income is self-inflicted or voluntary.” In re Marriage of
McKenzie, 709 N.W.2d 528, 533 (Iowa 2006).
In McKenzie, a father moved away from Iowa, where his children lived, to
South Carolina to be with a girlfriend. Id. at 533. McKenzie had gainful
employment in Iowa and no employment secured in South Carolina, and
following a fruitless job search in South Carolina, took a job earning more than
$10,000.00 less than he earned in Iowa. Id. at 533–34. The McKenzie court
ultimately calculated McKenzie’s child-support award based on his earning
capacity. Id. The court reasoned that McKenzie made a selfish, voluntary choice
to move, regardless of his commitment to provide for the welfare of his child, and
that using his actual earnings “would result in substantial injustice between the
parties.” Id.
5
Jennifer correctly argues that a district court must make a written finding that “if actual
earning were used, substantial injustice would occur or adjustments would be necessary
to provide for the needs of the child[ren] or to do justice between the parties.” Iowa Ct.
R. 9.11(4). Although we do not have the benefit of such a finding, we will proceed with
our de novo review of this issue.
12
Jennifer argues her employment as a substitute teacher allows her to save
money by minimizing her child-care costs. She argues full-time employment as a
teacher would result in her working more than sixty hours per week and would
force her to seek, and pay for, child care. Jennifer also argues that she has
never earned $45,000 annually, and if the court wanted to use this number as
her earning capacity, it should have also considered daycare costs.
We acknowledge that educators in Iowa often spend countless hours
dedicated to the betterment of children. On our de novo review of the record, we
find that the parties’ children were eleven and seven years of age at the time of
the modification order. Thus, full-time child care is limited because the children
are school-age and spend a majority of the day in school. Furthermore, although
some care or transportation may be needed before or after school, we cannot
say that justifies Jennifer’s voluntary decision to remain employed part-time for
the purposes of a child-support award determination. Accordingly, we find no
error in the district court’s decision to use Jennifer’s earning capacity rather than
her actual income.
V. Attorney Fees
Both parties have requested an award of appellate attorney fees. Adam
requests all of his incurred fees, and Jennifer requests $4000.00. Both parties
also requested attorney fees at the district court level, both of their requests were
denied. Pursuant to Iowa Code section 598.36, attorney fees on modification
may be awarded to a prevailing party at the court’s discretion. On appeal,
“attorney fees are not a matter of right, but rather rest in this court’s discretion.”
13
In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Like the district
court, we decline to award attorney fees on appeal to either party.
Costs on appeal are assessed equally between the parties.
AFFIRMED AS MODIFIED.