IN THE COURT OF APPEALS OF IOWA
No. 18-1621
Filed July 24, 2019
IN RE THE MARRIAGE OF BRANDY FLEMMING-JESS
AND MATTHEW FLEMMING
Upon the Petition of
BRANDY FLEMMING-JESS,
Petitioner-Appellant,
And Concerning
MATTHEW FLEMMING,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.
Brandy Flemming-Jess appeals from an order modifying the child-support
provisions of the decree dissolving her marriage to Matthew Flemming.
AFFIRMED.
Erin M. Carr of Carr Law Firm, Des Moines, for appellant.
David P. Kozlowski and David Barajas of Macro & Kozlowski, LLP, West
Des Moines, for appellee.
Considered by Mullins, P.J., Bower, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.
Brandy Flemming-Jess appeals from an order modifying the child-support
provisions of the decree dissolving her marriage to Matthew Flemming. She
argues Matthew is not entitled to a reduction of his child-support obligation
because he voluntarily reduced his income. Upon our de novo review, we agree
modification is appropriate under the facts of this case and we affirm.
I. Background Facts and Proceedings
Matthew and Brandy divorced in October 2014. They agreed Brandy would
receive physical care of their two children. At the time of the dissolution, Matthew,
a medical doctor, worked as a cardiologist and an electrophysiologist, and he was
earning in excess of $500,000 per year. Brandy was employed part-time as an
emergency medical technician, and she was earning less than $10,000 per year.
The parties agreed Matthew would pay Brandy $3500 per month in child support.
In October 2015, Matthew suffered a cardiac arrest and diabetic seizure,
resulting in neurological dysfunction, including cognitive impairment, visual and
speech difficulty, and tremors. Matthew engaged in therapy, and he was
eventually able to return to work with restrictions. However, in June 2016,
Matthew’s employer, Mason City Clinic, informed him it was not able to
accommodate his restrictions. Matthew was also notified his hospital privileges
were not being reinstated. Matthew continued rehabilitation, but he was informed
it was unlikely he “could return to work.” Nevertheless, Mason City Clinic allowed
him to return to work with restrictions in October 2016. He was terminated in March
2017 after a peer reported him to the Iowa Board of Medical Examiners due to
concerns about his ability to practice medicine. Since then, Matthew applied for
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numerous positions but has received no interviews. Currently, his sources of
income are $7000 per month and $5000 per month from two untaxed, private
disability policies. Matthew applied for Social Security Disability; he was initially
denied those benefits, but if granted, those benefits would offset his private
disability benefits.
Meanwhile, in 2016, Brandy suffered multiple strokes and is now medically
disabled. She receives Social Security Disability benefits in the amount of $17,364
per year.
In August 2017, Brandy petitioned to modify the child support provisions of
the parties’ dissolution decree, alleging a substantial and material change in
circumstances in that she “is no longer able to work” and Matthew’s child support
obligation for an older child “has expired.” Matthew filed a counter-claim, alleging
a substantial and material change in circumstances in that his “income has
decreased to such extent as there now exists a ten-percent deviation from [his]
present child support obligation.” In March 2018, the district court entered a
temporary order modifying Matthew’s child support obligation to $2500 per month.
In August 2018, following trial, the district court entered its ruling, denying
Brandy’s petition and granting Matthew’s request for a modification of child
support. The court modified the child support provisions to order Matthew to pay
$2193.22 per month to Brandy, pursuant to the child support guidelines. The court
ordered each party to pay their own attorney fees. Brandy appeals.
II. Scope and Standard of Review
We review orders modifying child support de novo. See In re Marriage of
McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the
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trial court’s fact-findings, especially those concerning witness credibility, though
we are not bound by them. See id. “We recognize that 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.
(quoting In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).
III. Modification of Child Support
Brandy contends the district court erred in finding a decrease in Matthew’s
earning capacity and income and accordingly modifying his child-support
obligation. Specifically, Brandy claims Matthew’s “decreased income is self-
inflicted or voluntary.” She argues Matthew “has not been diligent in obtaining
employment” and he “has made no lifestyle changes although his income has
decreased.”
The district court may modify the child-support provisions of a dissolution
decree when there has been a “substantial change in circumstances.” Iowa Code
§ 598.21C(1) (2017); In re Marriage of Reitz, 585 N.W.2d 226, 229 (Iowa 1998).
The party seeking modification must prove the change in circumstances by a
preponderance of the evidence. In re Marriage of Michael, 839 N.W.2d 630, 636
(Iowa 2013). The following principles apply to modifications under section
598.21C:
(1) there must be a substantial and material change in the
circumstances occurring after the entry of the decree; (2) not every
change in circumstances is sufficient; (3) it must appear that
continued enforcement of the original decree would, as a result of
the changed conditions, result in positive wrong or injustice; (4) the
change in circumstances must be permanent or continuous rather
than temporary; (5) the change in financial conditions must be
substantial; and (6) the change in circumstances must not have been
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within the contemplation of the trial court when the original decree
was entered.
Walters, 575 N.W.2d at 741 (quoting In re Marriage of Vetternack, 334 N.W.2d
761, 762 (Iowa 1983)); accord Michael, 839 N.W.2d at 636. “In determining
whether there is a substantial change in circumstances, the court shall consider,”
among other things, “[c]hanges in the employment, earning capacity, income, or
resources of a party” and “[c]hanges in the physical, mental, or emotional health
of a party.” Iowa Code § 598.21C(1)(a), (e).
The district court concluded Matthew proved a substantial change of
circumstances and modified the dissolution decree based on Matthew’s disability
income. See also id. § 598.21C(2)(a) (stating “a substantial change of
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”). But voluntariness in diminished earning capacity may be an
impediment to modification. See Walters, 575 N.W.2d at 741 (stating a support
order may not be modified based on a decrease in income that is self-inflicted or
voluntary). “[P]arents who reduce their income through an improper intent to
deprive their children of support or in reckless disregard for their children’s well-
being are not entitled to a commensurate reduction in child support payments.” Id.
(citation omitted).
At trial, Matthew described his employment situation as “very discouraging”
and testified he is “desperate to go back to work.” Matthew testified he was “willing
to relocate” if necessary to find employment. Similarly, one of Matthew’s outpatient
reports describes him as being “quite eager to return to clinical work as a
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physician.” Unfortunately, the evaluator further opined Matthew “should not
perform any procedures or take calls.” Since his termination, Matthew used
retirement funds to supplement his income to meet monthly expenses. Although
Matthew testified the children “are No. 1,” he explained, “Currently, I have to
withdraw from my retirement account to meet those expectations [of $3500 per
month in child support].”
The district court found Matthew’s termination from his job earning more
than $500,000 per year was not voluntary on his part. As the court stated:
In dispute in this matter is Matthew’s earning capacity and
whether his reduction in earnings has been voluntary. Matthew
contends that he has diligently been attempting to find employment
since his termination from the Mason City Clinic. He claims that his
attempts have been thwarted by the reason for his termination and
the current Iowa Board of Medical Examination actions pending
against him. In contrast, Brandy claims that Matthew should be able
to find some type of employment as a physician. She claims that
Matthew is not working up to his earning capacity and that if he was
so motivated Matthew could have earnings comparable to the
earnings he had prior to suffering the cardiac arrest on October 11,
2015. She contends that there are other employment opportunities
available for Matthew outside of his medical specialty, such as
teaching, lecturing, or practicing medicine as a general practitioner
or internal medicine physician. Despite these contentions, Brandy
offered no evidence as to Matthew’s prospective earnings as a
professor, lecturer, or general practitioner or internal medicine
physician.
To dispute Brandy’s claims, Matthew offered evidence of his
job search records and testimony that he has sought out other
employment opportunities outside of cardiology, and he has been
unsuccessful at securing employment. There was no evidence
offered by Brandy to support the proposition that even if Matthew
were to obtain employment outside of his specialty, or even outside
the scope of practicing medicine, that such prospective income
would be greater than the income he receives from his private
disability insurance. Even if Matthew were to obtain part-time
employment, similar to his potential receipt of Social Security
Disability benefits, that part-time employment income would be offset
against his disability.
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The court finds Matthew’s explanation for his failure to find
suitable employment as credible and reasonable. Given the nature
of his cognitive disability and the pending complaints against him, the
court believes it would be reasonable for any employer or medical
facility to be hesitant to retain him. The court, therefore, finds that
Matthew’s loss of income was not voluntary . . . . Furthermore, the
court finds that the significant reduction in pay is permanent rather
than temporary in nature. Matthew’s inability to find employment has
lasted a year and a half. He undergoes periodic reviews by his
disability carrier to prove his ongoing inability to work. Given the
nature of his work and claimed disability, the court believes that his
employment situation is unlikely to change in the near future.
The court finds that the child support guidelines control in this
matter and a determination of Matthew’s earning should be based
upon his disability income. While there is no doubt that the parties
and their children have grown accustomed to a certain lifestyle prior
to Matthews change of employment, the change of employment
experienced by both [Matthew] and [Brandy] were unforeseen and
outside their control.
As with any family who suffers catastrophic medical issues,
the impact on both parents and children can be dramatic. While
unfortunate, the law requires the court to apply the applicable child
support guidelines in this situation. Furthermore, the court finds that
no substantial injustice would result from the application of the child
support guidelines based upon the parties’ current incomes.
We agree with the district court’s conclusion that Matthew’s change in
income was not voluntary or self-inflicted. We observe the court found Matthew’s
“explanation for his failure to find suitable employment” to be “credible and
reasonable,” and we give deference to this finding. See McKenzie, 709 N.W.2d at
531 (giving weight to the trial court’s fact-findings, especially those concerning
witness credibility).
We conclude Matthew has shown a substantial change in circumstances
that warrants modification of his child-support obligation. Accordingly, we affirm.
IV. Appellate Attorney Fees
Matthew seeks an award of appellate attorney fees. An award of attorney
fees is not a matter of right and rests within our discretion. In re Marriage of
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Okland, 699 N.W.2d 260, 270 (Iowa 2005). We determine whether an award is
appropriate considering the needs of the party seeking the award, the other party’s
ability to pay, and whether the appeal required a party to defend the district court’s
decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In
light of these factors, we decline Matthew’s request for appellate attorney fees.
Costs on appeal are assessed equally between the parties.
AFFIRMED.
In re the Marriage of Flemming
Combined Opinion