Opinion
No. 5-437 / 04-0835
Filed July 13, 2005
Appeal from the Iowa District Court for Black HawkCounty, Thomas N. Bower, Judge.
Pamela Tromanhauser appeals an order modifying the child support provisions of a prior decree. AFFIRMED IN PART AND REMANDED.
Hugh Field of Beecher, Field, Walker, Morris, Hoffman Johnson, P.C., Waterloo, for appellant.
Michael Pedersen, Waterloo, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
In February of 2003 Pamela Tromanhauser and Richard John Foley entered into a stipulation changing the "care, custody and control, as well as physical placement of the minor child Brayden Foley," from Pamela to Richard. In this stipulation Richard agreed to "waive child support from [Pamela] at this time, said [Pamela] having two dependents in her home whom she is supporting (who are not the children of [Richard])." On March 5, 2003, the district court approved the parties' stipulation and entered its decree which stated, "[Pamela] shall not be ordered to pay child support at this time, due to special circumstances."
The district court decree referenced the stipulation but did not make any additional findings indicating that deviating from the child support guidelines was, "necessary to provide for the needs of the children and to do justice between the parties." Iowa Ct. R. 9.4; See also In re Marriage of Nelson, 570 N.W.2d 103, 107 (Iowa 1997) (stating "when a court sets child support in an amount different from that required by the guidelines, the law requires `a record or written finding, based on stated reasons, that the guidelines would be unjust or inappropriate as determined under the criteria prescribed by the supreme court.'" (emphasis in original) (citations omitted)). Nonetheless, no post-trial motions were made nor was the order appealed. Consequently, the March 5, 2003, order and decree is the law of the case, and is the basis for the subsequent modification action now on appeal. See In re Marriage of Frink, 409 N.W.2d 477, 479 (Iowa Ct.App. 1987) (concluding the district court's decision to apply Ohio law became the law of the case when both parties presented Ohio law to the court and neither appealed its conclusion that Ohio law applied).
In January of 2004 Richard sought to have the child support order modified. A hearing was held, and in an ordered dated April 16, 2004, the district court modified child support. Using the child support guidelines, the court ordered Pamela to pay $443.00 per month as well as fifty percent of Brayden's uninsured medical expenses once Richard's expenditures reached $250.00. Pamela appeals.
No record was made of these proceedings. Consequently, we rely on the appellant's prepared statement of the evidence and proceedings pursuant to Iowa Rule of Appellate Procedure 6.10(3).
Our scope of review in a child support modification action is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). Authority to modify support orders is given in Iowa Code section 598.21(8). See In re Marriage of Vatternack, 334 N.W.2d 761, 762 (Iowa 1983). This section states that, "[T]he court may subsequently modify orders made under this section when there is a substantial change in circumstances." See Iowa Code § 598.21(8) (2003).
In this case, the district court modified the amount of child support awarded without making a finding of whether there had been a substantial change in circumstances. The order states: "The court finds that there is no need to show a substantial change in circumstances. The court determines that the parties' agreement simply tolled [Pamela's] obligation to pay child support". Pamela appeals asserting the district court erred in these conclusions.
We first address the district court's finding that the parties, in their stipulation, did not agree to a permanent waiver of child support but only a temporary "tolling". It is this finding that caused the district court to conclude it did not need to find a substantial change in circumstances to order child support. The parties' stipulation clearly states that Richard "agrees to waive child support . . . at this time." The prepared statement of the evidence indicates that Richard "agreed not to require [Pamela] to pay child support in March because she was supporting and looking after two children." Thus, we agree with the district court and affirm its finding. The parties did not agree to permanently waive child support.
Moreover, we note that while "parents may contract between themselves as to support of their minor child if the best interests of the child are served thereby" they may not agree to "relieve a [parent] entirely and permanently of the duty to support [a] minor child." In re Marriage of Sundholm, 448 N.W.2d 688, 690 (Iowa Ct.App. 1993). The latter agreement is void as against public policy. Id; see also Huyser v. Iowa Dist. Ct., 499 N.W.2d 1, 3 (Iowa 1993) (reaffirming the proposition that agreements to waive child support are against public policy and "ordinarily ineffective for that purpose."). Thus, even if the parties would have agreed to permanently suspend Pamela's child support obligation, such agreement would not be enforceable.
Unlike the district court, we do not believe that the lack of such an agreement obviates the statutory requirement of finding a substantial change in circumstances before modifying a pre-existing child support order. See Iowa Code § 598.21(8). Thus, we conclude that while the district court's original decree appears to contemplate a change in circumstances that would warrant child support in the future, a modification of this decree could not be ordered without the district court first finding that such a change in circumstances had in fact occurred.
Richard appears to agree with this conclusion as his chief argument is, "The record of this case does indeed show justification for modification based upon `substantial change.'" Moreover, the prepared statement of evidence indicates that both parties introduced evidence addressing the issue of whether a substantial change in circumstances had occurred.
Based upon our review of the very limited record the "special circumstances" referred to as a reason for not originally ordering child support appear to be Pamela's obligation to support her two other children. The decree seemingly contemplated an end to these special circumstances. However, the district court on modification did not address whether a substantial change in circumstances existed. The court only found that the original decree's tolling of child support was caused by the "financial difficulties attributed to [Pamela]". Unfortunately, there is no finding as to Pamela's current financial situation or whether the "special circumstances" continue to exist. See Iowa R. Civ. P. 1.904(1). Consequently, we remand this case so that the district court may, based on the existing record or by the taking of additional evidence, determine whether a substantial change in circumstances has occurred which would justify a modification of the original decree's order regarding child support. See In re Marriage of Blume, 473 N.W.2d 629, 633 (Iowa Ct. App. 1991) (remanding the case so that the district court could, for purposes of determining child support, make the required finding of the average earning capacity of one of the parties). We do not retain jurisdiction.