In re Marriage of George

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.
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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’]
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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.
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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).
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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.
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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.
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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.