In re the Marriage of Herum

IN THE COURT OF APPEALS OF IOWA

No. 17-1161
Filed May 2, 2018

IN RE THE MARRIAGE OF STACY HERUM AND SCOTT HERUM

Upon the Petition of
STACY HERUM, n/k/a STACY ZUMBACH,
Petitioner-Appellee,

And Concerning
SCOTT HERUM,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Emmet County, Nancy L.

Whittenburg, Judge.

Scott Herum appeals the district court decision partially granting and

partially denying his petition to modify a dissolution decree. AFFIRMED.

Christine B. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for

appellant.

Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for appellee.

Considered by Doyle, P.J., and Tabor and McDonald, JJ.
 2

TABOR, Judge.

Scott Herum asked the district court to modify the alimony, physical-care,

and child-support provisions of the decree dissolving his marriage to Stacy

Zumbach. Scott’s modification petition cited the declining farm economy, Stacy’s

new romantic relationship, and the couple’s eldest son moving in with Scott as

material changes since entry of the decree. The court partially granted Scott’s

petition but on appeal he contends the court committed several errors. Because

Scott did not establish any basis for further modification, we affirm.

I. FACTS AND PRIOR PROCEEDINGS

Scott and Stacy had a fifteen-year marriage during which they had three

children: a son D.H., born in 1998, a daughter Em.H., born in 2001, and a son

Et.H., born in 2005. Also during their marriage, Scott and Stacy built and ran a

large family farm comprising several thousand acres of land. At the time of the

dissolution in 2012, they filed a joint stipulation and property settlement which the

court approved and wholly incorporated into the decree. The record contains very

limited information regarding the parties’ finances before dissolution. Part of the

purpose of the stipulated decree, according to the parties, was to keep financial

information private. The parties did file a joint agricultural balance sheet showing

they had a net worth of around $5.9 million dollars. But, the stipulation and

subsequent agricultural balance sheet show Stacy received only around $1.3

million dollars worth of property in the dissolution. In addition, Scott agreed to pay

Stacy monthly $3000 in child support and $2500 in alimony. The parties had joint

custody, but Stacy had physical care with reasonable and liberal visitation to Scott.

Neither party appealed the decree.
 3

In 2015, Scott filed a petition for modification, alleging several substantial

changes in circumstances. Since the decree, the couple’s eldest son, D.H., had

moved in with Scott; Scott therefore asked for a transfer of physical care and a

reduction in his child support obligation. The farm economy had taken a downturn,

and Scott asserted he was unable to continue making alimony payments. Also,

Scott alleged Stacy was cohabiting with her boyfriend, Dennis Tobin, and therefore

alimony should be terminated. He also asserted Stacy’s relationship with Dennis

was creating a poor environment in Stacy’s home such that Scott should be given

more time with the children.

Stacy stipulated before the modification hearings that physical care of D.H.

should be transferred to Scott. The district court agreed and, finding D.H. had

completed high school during the pendency of the modification, reduced Scott’s

child support obligation to $2200 per month, as set out in the decree. With respect

to alimony, the district court found the support award was actually part of the

property division and was therefore non-modifiable. In addition, the court found

Scott did not meet the burden to show the custody arrangements of the two

younger children should be disturbed.

On appeal, Scott contends (1) the district court erred in finding the alimony

award was a part of the property division and therefore unmodifiable; (2) the court

should have increased his parenting time; (3) the court erred in not complying with

the child support guidelines under Iowa Court Rule 9.11 and should have reduced

his child support obligation due to a substantial change in circumstances; Scott

also asserts the court should have awarded him retroactive reimbursement of child

support paid; and (4) the court’s delay in issuing the modification decision
 4

constituted an abuse of discretion and violated Iowa Court Rule 22.10. Both

parties request attorney fees.

II. LEGAL STANDARDS AND SCOPE OF REVIEW

Because all the following issues lie in equity, we review the modification de

novo. In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006). While we are not

bound by the fact-findings of the district court, we accord them weight, especially

as to credibility determinations. In re Marriage of Dean, 642 N.W.2d 321, 323

(Iowa Ct. App. 2002).

III. ANALYSIS

A. Alimony

Scott petitioned to modify the alimony award based on a substantial change

in circumstances: his reduced farm income and Stacy’s alleged cohabitation with

her boyfriend. The district court denied Scott’s request to terminate his alimony

obligation. On appeal, Scott argues it was error for the court to “modify the decree

from the award of traditional alimony to a property settlement.” But the district

court did not modify the decree. Instead, it found Stacy’s alimony constituted a

property award that—based on the parties’ own stipulation—was not subject to

modification. On our de novo review of the record, we disagree with the district

court’s reasoning but reach the same result.

Under Iowa law, marital property should be divided equitably between the

parties. See Iowa Code § 598.21 (2015). An equitable division is not always

strictly equal. In re Marriage of Hansen, 886 N.W.2d 868, 871 (Iowa Ct. App.

2016). Here, Scott and Stacy agreed that from their $5.9 million estate Stacy would

take property equaling only $1.3 million. Scott agreed to pay child support of $3000
 5

per month with reductions when the children turned eighteen or graduated from

high school. Scott also agreed to pay Stacy $2500 per month in alimony “until

Stacy attains the age of sixty-five (65) years, dies, or remarries, whichever first

occurs.” Scott would maintain life insurance coverage with Stacy as the primary

beneficiary for $500,000 in the event of his untimely death before any of the

terminating events. Scott and Stacy further agreed, “Neither the amount nor the

term of the alimony shall be modified.”

A stipulation is a contract between the parties. In re Marriage of Morris, 810

N.W.2d 880, 886 (Iowa 2012). But, the stipulation

is not binding on the court, as the court has the responsibility to
determine whether the provisions upon which the parties have
agreed constitute an appropriate and legally approved method of
disposing of the contested issues . . . . [T]he court has the authority
to reject the stipulation. Consequently, once the court enters a
decree adopting the stipulation, the decree, not the stipulation,
determines what rights the parties have . . . . [I]n ascertaining the
rights of the parties after final judgment, it is the intent of the district
court that is relevant, not the intent of the parties.

Id. (internal quotations and citations omitted). In other words, a decree should not

be affirmed just because the parties agreed to the stipulation providing the basis

for the court’s decisions. See In re Marriage of Jones, 653 N.W.2d 589, 593–94.

On review,

[a] judgment or decree is to be construed like any other written
instrument. The determinative factor is the intention of the court as
gathered from all parts of the judgment. Effect must be given to that
which is clearly implied as well as that which is expressed. In
construing a judgment, force and effect should be given every word,
if possible, to give the judgment as a whole a consistent, effective
and reasonable meaning.
 6

In re Marriage of Lawson, 409 N.W.2d 181, 182–83 (Iowa 1987) (internal

quotations and citations omitted).1 A husband and wife “may arrange between

themselves for the disposition of their property interests . . . and effect will be given

by the court to a stipulation, if entered into in good faith and the provisions thereof

are found to be fair and reasonable.” Slattery v. Slattery, 116 N.W. 608, 609 (Iowa

1908).

Here, the decree court found the stipulation was “fair and equitable and

should be incorporated as part of this Decree . . . in its entirety, the same as though

fully set forth herein.” The decree court also stated, “The property rights of the

parties, as well as their rights, privileges, and obligations as parents, shall be

governed by the terms and conditions therein contained,” including all the

provisions set out above. Neither party appealed the original decree. In this

appeal, neither party has asserted that any provision of the stipulation or decree is

unenforceable, including the provision that disallows modification of the alimony

amount and duration.2

Instead, Scott’s modification petition asked the court to apply Iowa Code

section 598.21C(1) and find a substantial change in circumstances justified

terminating the alimony award. But the court instead, analyzing the case under

1
Scott encourages us to resolve these issues on contract principles. This is not the rule
when the court merges the stipulation into the decree, as the court did here. See Morris,
810 N.W.2d at 886.
2
A recent supreme court case addressed a provision in a pre-marital agreement waiving
attorney fees in a subsequent dissolution action. In re Marriage of Erpelding, ___ N.W.2d
___, ___, 2018 WL 1122305 (Iowa 2018). The supreme court determined “a premarital
agreement waiver of attorney fees pertaining to child support or spousal support is
unenforceable because it adversely affects a spouse’s or child’s right to support in
contravention of [Iowa Code] section 596.5(2).” Id. at ___. Here, neither party argues the
non-modification provisions for either child support or alimony have an analogous
“adverse effect.”
 7

the principles of Knipfer v. Knipfer, 144 N.W.2d 140 (Iowa 1966), found the award

constituted a non-modifiable property settlement.3 In Knipfer, our supreme court

found an award for “alimony” was a property division provision where the wife gave

up her share in substantial marital property. 144 N.W.2d at 145. The award was,

therefore, not modifiable. In Knipfer, the wife received an award of $500 per month

for as long as she lived, “but in any event for a minimum period of ten years.” Id.

at 144. This provision resulted in the wife receiving at least $60,000 over ten years,

instead of an initial award of an equitable share of the marital estate, valued around

$100,000. Id. The payments did not terminate upon the wife’s remarriage. Id.

Ostensibly, they would not terminate within the minimum period of ten years, even

upon the wife’s death. Id. The husband was required to maintain a life insurance

policy of $50,000 for the benefit of the wife, in the event of his untimely death. Id.

The court found the award was “definite, certain and fixed and was to continue for

a definite time, even beyond [the wife’s] life, a factor not generally embodied in an

alimony allowance.” Id. at 144. The fact the award was made in installments rather

than as a lump sum, the court found, was immaterial. Id. But, an important

distinguishing factor was that the wife, at the time of the divorce, was a ward of the

state and confined in an institution due to debilitating alcoholism. Id. The court

found payment in installments was preferable to a lump sum because she was

believed to be incapable of managing money on her own. Id. What was significant

was that the payment was permanent, “for a fixed or determinable sum,” and given

in lieu of the wife’s rights in property or her dower rights. Id.

3
Iowa Code § 589.21(7) states, “Property divisions made under this chapter are not
subject to modification.”
 8

In reaching its conclusion, the court noted the decree’s use of the term

“alimony” was not conclusive. Id. at 142. In deciding whether an award constitutes

alimony or a property division, courts must consider

all the relevant factors, including the provisions of the agreement
between the parties, the circumstances under which the agreement
was made, the nature and value of the property owned by and to be
divided between the parties, the original divorce proceedings and the
terms of the divorce decree sought to be modified.

Id. at 143.

Scott distinguishes Knipfer, contending the award to Stacy is for alimony,

and therefore modifiable. Stacy urges us to accept the district court’s reasoning

and find the alimony award was actually part of the property division based on her

testimony that she voluntarily took a smaller share of the property in exchange for

a larger alimony award.

Since Knipfer, our courts have rarely had occasion to decide whether an

award labeled “alimony” is actually a property division or vice versa. In Zinger v.

Conklin, the decree court divided the marital property and ordered the husband to

pay the wife $750 within thirty days of the entry of the decree and $250 monthly

for two years, followed by $225 monthly until the wife’s death or remarriage,

whichever should occur first. No. 12-0433, 2012 WL 3196123, at *1 (Iowa Ct. App.

Aug. 8, 2012). These payments, the district court explained, “shall represent

additional funds to accomplish an equal division of the assets of the parties.” Id.

The court further decreed neither party was liable for any alimony. Id. When the

husband died before the wife, the wife sued the estate for continuation of the

payments. Id. But, this court determined the award was for alimony and therefore

terminable upon the husband’s death. Id. at *3. The award was not for a “fixed or
 9

determinable sum,” as was the case in Knipfer. Id. We further found the language

of the decree suggested the award was alimony for two reasons: first, because the

payments were to be made to the clerk of court, usually a feature of alimony;

second, because the payments terminated upon the wife’s death or remarriage,

language typically used to describe an alimony award. Id. Therefore, even if a

decree specifically notes neither party gets alimony and additional funds are

awarded “to accomplish an equal division” of marital assets, but does not establish

a fixed or determinable sum and sets out conditions typical to an award of alimony,

the court may determine the award is alimony and therefore modifiable in a

subsequent action. See id.

In In re Marriage of Harvey, 393 N.W.2d 312, 314 (Iowa 1986), a wife

appealed a modification to a decree granting her “periodic payments” where she

also retained almost all of the marital assets. Our supreme court found the award

was terminable upon her marriage because, although she argued it was a property

division, the payments appeared to have been intended for the wife’s future

support and were intended to terminate upon her death. Harvey, 393 N.W.2d at

314. So, the court concluded, they were properly characterized as modifiable

alimony payments.

In the present case, the decree includes no explicit language indicating the

“alimony” award was meant to equalize the property division. The decree fully

incorporates the parties’ stipulation. The stipulation does not express the award

labeled “alimony” serves a different purpose than traditional spousal support. The

only indication to that effect is the provision that the alimony term “shall not be

modified.” The award terminates upon Stacy reaching the age of sixty-five, her
 10

death, or her remarriage; Scott is not mandated to pay alimony for any minimum

period, such as the ten years in Knipfer. See 114 N.W.2d at 144. So, the

cumulative award is not a fixed and determinable sum. See id. In awarding

alimony, the district court properly considers the distribution of marital property.

Iowa Code § 598.21A(1)(c). Alimony can balance an otherwise inequitable division

of property. See In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa 2008). But

that does not render the alimony a part of the property division.

Here, the marital estate was not equally divided, and Stacy maintains the

larger alimony award was meant to equalize the property division. At the

modification hearing, she testified she purposely walked away from the marriage

with only $1.3 million of the almost $6 million estate explaining, “I helped build that

operation [the Herum farm]. I did not want to see it be sold, split up. Scott’s

family—I’m not that type of person. And I knew my son. I wanted something for

him.”4 According to Stacy, she and Scott agreed there would be no changes to

the decree once final, and she took the lesser property allocation based on that

agreement. She testified she was not aware the alimony award could be modified,

and would not have agreed to the stipulation had she known. When asked about

her understanding of the combination of the property settlement and alimony, she

said, “Scott and I made that agreement. We sat down together to avoid sitting

here in court like we are today. We had built that operation together. We had

4
The record shows Stacy contributed significantly to the growth of the farm from the
roughly 300 acres Scott owned at their marriage to around 6700 acres at the time of their
dissolution. Scott testified it was the sixteenth largest farm in the state of Iowa. Stacy left
her job as a bank loan officer after their marriage to work full time on the farm operation.
The couple’s son, D.H., is active in Future Farmers of America and intends to farm. Both
parents anticipate D.H. taking over the Herum farm in the future.
 11

three wonderful kids. And we wanted to keep the court out of it. And I accepted

that to keep him going.” Stacy entered the stipulation knowing she would be

receiving less than half the value of the marital estate.5 Moreover, Stacy has paid

taxes on the alimony, and Scott has deducted it from his earnings.

Under these circumstances, we conclude the “alimony” awarded in this case

is properly understood as an alimony award, not part of a property settlement or in

lieu of property. It appears from the stipulation and Stacy’s testimony that the court

awarded the amount of alimony to compensate for Stacy’s smaller share of the

property division. But, it is neither permanent nor for a fixed and determinable

sum; terminates in the same way as an alimony award; and does not cumulatively

result in an equitable division of marital assets. No language in the decree signals

the alimony award should be read as part of the property settlement. No evidence

in the record from the original dissolution proceedings shows either party intended

alimony to be awarded in lieu of marital property. How the court distributes the

marital property is an important consideration in determining the award of alimony.

See Iowa Code § 598.21A. Stacy admits she received an inflated alimony award

to make up for taking less of the property. Contrary to the district court’s analysis,

the circumstances presented here do not show the alimony award should be

treated as part of the property division.

We must now decide how to address the modification petition. Generally,

provisions for spousal support are final unless “there is a substantial change in

5
Even if Stacy received the same alimony payments until she reached the age of sixty-
five, she would receive only around $780,000 (26 years times $2500 per month) in addition
to the property settlement, which does not approach half the marital assets at the time of
the dissolution.
 12

circumstances.” In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014); see

also Iowa Code § 598.21C(1). The decree provides the alimony amount and

duration are not modifiable, and Stacy also testified she and Scott agreed the

provisions were not subject to modification to protect their children and to avoid

the “public display” caused by this type of litigation. Neither party directly appealed

the decree, nor do they contend in this appeal that the modification provisions are

not enforceable.6 See In re Marriage of Phares, 500 N.W.2d 76, 79 (Iowa Ct. App.

1993) (explaining “parties may contract and dissolution courts can provide alimony

is not modifiable”). Thus, we are left with the decree terms as written. Because

the decree does not permit modification of the alimony except upon the termination

events described, we deny the petition to modify alimony. Scott contends alimony

should be terminated because Stacy is cohabiting with her boyfriend, but

cohabitation is not one of the terminating events in the parties’ stipulation.

B. Modification of physical care7

Scott next contends the district court erred in not modifying the decree to

grant him physical care8 of the children due to “the emotional harm to the children

done by their mother.” Scott asserts Stacy has alienated the children from him by

cohabiting with her boyfriend, Dennis, disallowing summer visits, and turning off

the youngest child’s cellphone. He asserts he offers the children superior care.

6
Scott testified at the modification hearing he would never have agreed to a stipulation
creating a non-modifiable alimony term, but he plainly did.
7
Because the court modified the custody arrangement for Scott to have physical care of
D.H., the following section addresses the two younger children only.
8
It is unclear if Scott is seeking sole or joint physical care. Scott told the district court he
wanted “half of the time” with the children. On appeal he asks for “more contact” with the
children but also references “placement” with him.
 13

A party seeking modification of a decree’s physical care provision has two

hurdles: (1) prove by a preponderance of the evidence a substantial change in

circumstances occurred after the decree was entered and (2) prove a superior

ability to minister to the needs of the children. In re Marriage of Harris, 877 N.W.2d

434, 440 (Iowa 2016). Non-exclusive lists of factors for determining what physical

care arrangement is in the children’s best interests are found in Iowa Code

section 598.41(3) and in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974). Once a physical care arrangement is in place, the party seeking to modify

it has a heightened burden which we disturb for only the most cogent reasons.

See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

We focus on Scott’s claim a substantial change in circumstances occurred

since the decree was entered, namely, Stacy has alienated the children from him.

Scott alleges Stacy is cohabiting with Dennis9 and “has turned the children into

witnesses/advocates for her position through such influence”; Stacy did not allow

their eleven-year-old son Et.H. to have a cellphone or attend summer visitation

with Scott; and the children needed counseling because of Stacy’s behavior.

In response, Stacy testified Et.H. did not visit Scott for several months of

the preceding summer because Et.H. had an eye injury, needed medication every

couple hours, and knew he could depend on Stacy to administer it.10 Regular

visitation resumed after that time. Stacy explained she disconnected Et.H.’s phone

because he did not use it and could not get good service at Scott’s house. The

9
The eldest child, D.H., expressed concerns about Stacy’s relationship with her boyfriend,
and his concerns formed a partial basis for moving to his father’s house.
10
Et.H.’s counselor confirmed Et.H. gave this reason for not visiting Scott.
 14

district court found, and we agree, Stacy was not cohabiting with Dennis. She

acknowledged they were in a serious relationship, spent time in each other’s

homes, and assisted each other with farm chores on their respective farms. But

they maintained separated residences, separate finances, and were not engaged

in a business partnership. Scott faults Stacy for exposing the children to Dennis

but admits he has dated several women since the divorce and invited a woman

friend to join him and D.H. for lunch.

The record does not support Scott’s assertions Stacy has acted to

undermine his relationship with Et.H. and Em.H. Stacy communicates with Scott

by email about the children’s grades and Et.H.’s additional tutoring needs. Scott

rarely, if ever, responds. When Et.H. expressed reluctance to spend time with

Scott, Stacy sought out a counselor to work with their son. The counselor testified

Et.H. initially demonstrated adjustment difficulties going between his parents’

houses and experienced behavioral and emotional challenges. But Et.H. did not

tell the counselor Stacy discouraged him from seeing Scott.

Stacy testified Dennis has a good relationship with the children. The

counselor said Et.H. talked about Dennis in very favorable terms and enjoyed

spending time with him. The counselor did not believe concerns about Dennis

precipitated the boy’s need for counseling. Stacy’s father, testifying for Scott,

described Et.H.’s relationship with Dennis as “awfully good” and the grandfather

had no concerns about Dennis interacting with Em.H. either. Stacy’s mother

provided substantially the same testimony.

Both parents report Em.H. is an excellent student and talented musician.

But Stacy testified Em.H. confronted her on multiple occasions about matters
 15

related to the divorce she could only have heard from Scott. Scott admitted using

Em.H. as a go-between so he does not have to speak with Stacy. Stacy testified

Em.H. does not want to be placed in that position. Stacy also testified when the

children are with Scott, fifteen-year-old Em.H. is responsible for helping her

younger brother do his homework and get to bed because Scott is often gone.

We conclude Scott has not shown a substantial change in circumstances

caused by Stacy’s behavior. Et.H. and Em.H. have not expressed significant

concerns about Dennis. Scott theorized some difficulties the children might have

with Dennis but they do not comport with testimony from Stacy, the counselor, or

the grandparents. Stacy did not prevent Et.H. from attending his summer visit with

Scott; Et.H. chose to stay with his mother due to his eye injury. We find no credible

evidence showing the children have needed counseling solely because of Stacy’s

conduct or new relationship.

We also conclude Scott has not demonstrated he can provide superior care.

The record reflects he is less attentive to the children’s schooling, activities, and

needs than Stacy has been, even when Stacy has tried to keep him informed.

Scott testified he had attended Et.H.’s baseball practice the previous week, but

had not seen Em.H.’s band events in several months. He could not name the last

time he attended a parent-teacher conference. And he was not aware how many

days his children had missed school, though Stacy informed him of warning letters

about attendance sent by their schools. The parents rarely, if ever, communicate

regarding the children despite Stacy’s efforts. Scott appears less able to support

the children’s relationship with their mother, while Stacy has been supportive of
 16

their relationship with Scott. We see no reason to disturb the physical care

arrangement.

C. Child support

Scott contends the court erred in not complying with the child support

guidelines without explanation, in not finding a change in circumstances justified

modification, and in not awarding a retroactive reduction in his support obligation.

1. Child support guidelines and change of circumstances

Scott contends the district court erred in not modifying the child support in

compliance with Iowa Court Rule 9.11, the Child Support Guidelines, and without

making the required special findings. In support, he argues there has been a

substantial change in circumstances to justify modification. We read Scott’s

argument as challenging both the initial decree’s child support order and,

separately, urging modification based on a change of circumstances, specifically

D.H. moving in with him and a reduction in his farm income.

a. Rule 9.11 compliance

Scott complains the modification court did not apply Rule 9.11.11 But if Scott

wanted to challenge the departure from the guidelines, he should have done so in

a challenge of the original decree, not in the modification action. Neither party

appealed the decree or moved to enlarge or amend it. Scott did not complain

11
Rule 9.11 instructs the court “shall not vary from the amount of child support that would
result from application of the guidelines without a written finding that the guidelines would
be unjust or inappropriate” considering a number of criteria, including that “[s]ubstantial
injustice would result to the payor, payee, or child(ren).”
 17

about the lack of compliance with Rule 9.11 until his 1.904(2) motion following the

modification decision. The court overruled the motion.12

We also believe the decree court complied with Rule 9.11 by finding, “[T]he

child support guidelines are inappropriate and unjust under the special

circumstances of this case for the reason that substantial injustice would result to

[Stacy] or the child, or both[.]” The court declined to depart from the parties’

agreed-upon amount of child support in consideration of the terms of the

agreement, “including, but not limited to, the property and alimony provisions; the

indemnification provisions; in anticipation that Scott’s income will increase in future

years and his acceptance of the associated risk that it may not increase” and other

provisions. “[P]arents cannot lightly contract away or otherwise modify child

support obligations.” In re Marriage of Mihm, 842 N.W.2d 378, 384 (Iowa 2014).

But here the decree court considered the disparate division of the marital property

in awarding elevated alimony and child support, though departing from the child

support guidelines, and made the findings necessary to explain the departure, as

required under Rule 9.11. Similar to our holdings on alimony above, the district

court considered the smaller share of property Stacy took and balanced it with

higher alimony and child support awards.

b. Modification based on change of circumstances

Scott asserts a substantial change of circumstances justifies modification of

the original decree, specifically that D.H. moved in with him and his farm income

declined. The district court granted Scott physical care of D.H. and reduced the

12
The court granted the motion to the extent of correcting one typographical error.
 18

child support obligation by operation of the decree provisions. So we address

Scott’s argument regarding a reduction in his farm income. A provision of the 2012

decree makes the child support order non-modifiable for seven years. The decree

court explained this was justified by the above-discussed considerations as well

as the parties’ desire “to provide stability and reach a lasting agreement that avoids

the costs of litigation[.]” Again, in light of the disparate property division, the parties

agreed and the court approved, a term of non-modifiable child support that neither

party challenged. On appeal, neither party asserts this term is not enforceable.

We have in the past enforced a provision for permanent non-modifiable child

support. See In re Marriage of Pulley, No. 05-1576, 2006 WL 2872493, at *2-4

(Iowa Ct. App. Oct. 11, 2006).

But, we do not need to decide if the term is enforceable because we find

the argument was not properly raised. In each of Scott’s modification and

amended modification filings as well as his post-hearing brief, he requests a

change in the child support obligation only pursuant to his request for a change in

the physical care arrangement. The court granted him physical care of D.H. and

changed the support obligation accordingly, but declined to change the physical

care arrangement for the two younger children. The district court did not address

any change in the child support obligation based on his reduced income because

it was raised before it only in the context of challenging alimony. “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.” Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Scott did not argue his child support
 19

obligation should be reduced based on his reduced farm income until the appeal.

The issue is not properly before us.

2. Retroactive child support

Scott next contends the time it took to litigate the modification prejudiced

him financially and caused him to overpay $22,400 in child support. Scott notes

the parties stipulated in May 2016 that he should have physical care of D.H., and

D.H. turned eighteen in 2016 and graduated from high school May 21, 2017—all

before the court’s June 2017 decision.

The modification court did transfer physical care of D.H. to Scott and reduce

Scott’s child support obligation, as of the date of the decision. But Iowa case law

prevents courts from imposing a retroactive reduction in child support before

modification is ordered. In re Marriage of Barker, 600 N.W.2d 321, 323–24 (Iowa

1999); see also In re Marriage of Smith, No. 14-1684, 2015 WL 5965212, at *9–10

(Iowa Ct. App. Oct. 14, 2015) (striking down an order to pay retroactive child

support and declining to overturn Barker when party argued the rule “is no longer

fair and equitable with the current judicial delays”); In re Marriage of Doubek, No.

12-0628, 2013 WL 104962, at *2 (Iowa Ct. App. Jan. 9, 2013) (striking down an

order for retroactive reimbursement of child support received); In re Marriage of

Wattonville, No. 11-1148, 2012 WL 1439241, at *6 (Iowa Ct. App. Apr. 25, 2012)

(remanding to the district court due to calculation error and declining to order

reimbursement of child support through the recalculation decision).

The decree provides Scott’s child support obligation for three children

continues until the eldest child reaches the age of eighteen or graduates from high

school, whichever occurs last. When only two children are subject to child support,
 20

Scott’s obligation drops to $2200 per month. When the district court issued its

modification ruling, it noted D.H. had turned eighteen and graduated from high

school the previous month. It changed the child support obligation going forward

to $2200 per month. The change could not be made retroactive. We find no error

in the court’s ruling.13

D. Rule 22.10 violation

Next, Scott complains the belated ruling violated Iowa Court Rule 22.10 for

reporting of pending cases and constituted an abuse of discretion for which this

court should reverse and remand the decision. Scott filed his petition to modify in

February 2015; the court set the matter for hearing in June and September 2016,

and issued its decision in June 2017.14 At the end of the modification hearings,

the court informed the parties it would take some time to complete the ruling due

to the court’s trial schedule, pending priority matters on the court’s docket, and the

complexity of the legal issues.

Our supreme court has established a goal of resolving submitted issues

within sixty days. To create some accountability, Iowa Court Rule 22.10 instructs

judges to report monthly to the supreme court any matters “taken under

advisement in any case for longer than 60 days, together with an explanation for

the reasons for the delay and an expected date of decision.” Scott presents no

evidence the district court did not comply with this rule.

13
Scott asks us to apply the analysis of In re Marriage of Wade, 780 N.W.2d 563, (Iowa
Ct. App. 2010). But that case involved an order to retroactively increase child support,
which is permitted. Wade, 780 N.W.2d at 566–67; see Barker, 600 N.W.2d at 323–24.
14
There is a substantial pre-hearing record in this case including several trial continuances
requested by both parties, numerous depositions, and extensive discovery disputes. The
last of three hearings in the modification was on September 27, 2016. The court also gave
the parties until October 31 to file post-hearing briefs. Scott filed his brief on October 31.
 21

In Poole v. Hawkeye Area Community Action Program, 666 N.W.2d 560,

562 (Iowa 2003), the district court took sixteen months to rule on a relatively simple

motion for new trial. Our supreme court found no abuse of discretion and no

reason to either remand for a new trial or review that civil case de novo. Poole,

666 N.W.2d at 562. Here, the record included three days of trial and several issues

of considerable complexity. The district court’s ruling runs to almost thirty pages.

We acknowledge there was a substantial interval between submission and ruling,

but we do not find cause for reversal or remand.

E. Attorney fees

Both parties ask for attorney fees on appeal. An award of attorney fees is

not a matter of right, but rests in our discretion based on the parties’ relative

abilities to pay and the merits of the appeal. In re Marriage of Buttrey, 538 N.W.2d

322, 324 (Iowa Ct. App. 1995). Stacy largely prevailed under our review, and Scott

should contribute toward her cost in defending against the appeal. We direct Scott

to pay $4000 toward Stacy’s appellate attorney fees. Costs of the appeal are taxed

to Scott.

AFFRIMED.