Opinion
No. 5-718 / 05-0751
Filed November 23, 2005
Appeal from the Iowa District Court for Jackson County, James E. Kelley Judge.
A father appeals from the physical care and child support provisions of a district court modification decree. AFFIRMED AS MODIFIED AND REMANDED WITH DIRECTIONS.
Mary Schumacher, Dubuque, for appellant.
Steven Kahler of Schoenthaler, Robert, Bartelt Kahler, Maquoketa, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Jamie Fondell appeals a district court modification decree that awarded physical care of the parties' children to his former wife, Gracie Fondell, and calculated Jamie's child support obligation based upon his former rather than current income. We affirm the district court's physical care award, but remand this matter to the district court for recalculation of Jamie's child support obligation.
I. Background Facts and Proceedings.
Jamie and Gracie are the parents of two children: Alexis, born in 1993, and Alyssa, born in 1998. Jamie and Gracie's marriage was dissolved in September 2002. In relevant part, the dissolution decree awarded the parties joint legal custody, placed the children's physical care with Jamie, and ordered Gracie to pay the minimum amount of support due under the Child Support Guidelines.
Gracie appealed the physical care provision of the decree. We affirmed the district court. See In re Marriage of Fondell, No. 02-1537 (Iowa Ct.App. April 30, 2003). We agreed with the court's assessment that both Jamie and Gracie are loving and capable parents and its conclusion that Jamie could provide the children with greater overall stability.
When the parties' dissolution action was tried in district court in 2002, Jamie had stable employment and intended to have the children remain in the family home in Bellevue, close to their family, friends, and schools. In contrast, Gracie's future was uncertain. Gracie had recently received an associate's degree from a community college, but was unemployed. She lived in Maquoketa, a community near Bellevue, but it appeared that it would be necessary for her to leave the area to secure employment.
The record reveals that Jamie continued to live in Bellevue with the girls after the dissolution decree was entered. He voluntarily changed employers in January 2004. Jamie was paid $35,000 per year by his previous employer in a position that required frequent overtime hours. He earns $28,080 per year in his new position and "very rarely" works overtime. Gracie has continued to live in Maquoketa since the marriage was dissolved. She purchased a home there in February 2003. Gracie obtained employment with Deere Co. in nearby Dubuque in September 2003. She earns $42,224 per year.
In May 2004 Gracie filed an application for modification of the parties' dissolution decree, citing Jamie's interference with her rights of visitation and contact with the children. She requested that she be awarded the children's physical care.
Following a contested hearing, the district court found a substantial change in circumstances had occurred since the initial decree was entered. The court modified the dissolution decree to award Gracie the children's physical care. In setting Jamie's child support obligation, the court used Jamie's former salary of $35,000 rather than his current salary. The court noted Jamie had voluntarily reduced his income and concluded it was "only fair to the children" that support be based upon Jamie's former salary. Jamie filed a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). In its ruling on the motion, the district court made no significant changes to the modification decree.
Jamie appeals. He contends the court erred in modifying the decree to award Gracie physical care. He also contends the court erred when it used his prior income, rather than his actual income, in calculating his child support obligation.
II. Scope and Standard of Review.
Our scope of review is de novo. Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000). Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)( g).
III. Physical Care.
As the party seeking modification of the dissolution decree, Gracie was required to establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the initial decree which was not within the district court's contemplation when the decree was entered. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). The change must be more or less permanent, and relate to the children's welfare. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). Gracie must also demonstrate a superior ability to minister to the children's well being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). Upon our de novo review of the record, we agree modification of physical care was warranted in this case.
In concluding circumstances had substantially and materially changed since the decree was entered, the district court noted Jamie had abdicated many of his parental responsibilities to his mother, Suzanne. The court further found that Jamie and Suzanne had interfered with Gracie's visitation and communication with the children. The court also expressed concern regarding Jamie's lack of "insight into the lives of his children or into their development" and concluded that he "is content to let his mother raise them." Giving due weight to the district court's fact findings, and in particular its credibility assessments, we find no reason to disagree with the district court's conclusions.
The district court found Jamie's testimony was not credible in a number of respects.
At the time of the initial decree the district court clearly contemplated that Suzanne would likely provide daycare for the children while Jamie was at work and that Jamie would be able to rely on his family for support and assistance in caring for the children. However, we do not believe the court anticipated the extent to which Jamie would leave the girls in Suzanne's care. For example, the record reveals that in 2003 the children stayed overnight at Suzanne's home ninety-nine times. It is also apparent the court believed Jamie would cooperate with Gracie to maximize her contact with the children. However, the record reveals numerous instances where Jamie or his mother obstructed or interfered with Gracie's opportunity to maintain maximum continuous physical and emotional contact with the children.
While Jamie points out that much of the obstructive conduct occurred when the girls were in Suzanne's care, and notes Gracie and Suzanne have always had a difficult relationship, the record reveals Jamie did little to discourage his mother's behavior. Jamie also seeks to minimize his own behavior, in part by noting that much of the visitation he allegedly interfered with was visitation above and beyond that set by the court in the initial decree. However, the district court took care to note that the visitation schedule it set should be considered as the minimum to which Gracie was entitled and anticipated the parties would cooperate in the exercise of additional visitation. It is apparent that Jamie failed to meet the court's expectation.
In light of the significant amount of time the children spent in Suzanne's rather than Jamie's care, and Jamie's and Suzanne's interference with Gracie's ability to maintain maximum continuous contact with the children, we conclude there has been a substantial change in circumstances. We therefore turn to the question of whether Gracie has demonstrated a superior ability to minister to the children's well-being.
Like the district court, we conclude Gracie has met her burden in this regard. Both Jamie and Gracie have stable employment and housing, and both continue to be loving and capable parents. However, Gracie has demonstrated an ability and willingness to encourage the children's relationship with their father and to make the girls a priority in her life. Unfortunately, there is credible evidence Jamie has not been as supportive of Gracie's relationship with the children since the parties' dissolution. This failure has a negative impact upon the children's emotional stability. See In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). We also have some concern about the priority of the children in Jamie's life, given his heavy reliance on Suzanne as the girls' caretaker.
Gracie has shown a substantial change of circumstances and has demonstrated a superior ability to minister to the children's well-being. We accordingly affirm the district court's order granting her application to modify the children's physical care.
IV. Child Support.
Jamie contends the court erred by using his former income to calculate his child support obligation. Although a court typically looks to a party's actual earnings when setting a child support obligation, earning capacity can be substituted for actual earnings upon a finding that it is necessary to provide for the children's needs and to do justice between the parties under the special circumstances of the case. See Iowa Code § 598.21(4)(a); Iowa Court Rs. 9.4, 9.11; In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.App. 1992). In making such a finding, a court must examine a party's employment history and current earnings. See Iowa Dep't of Human Servs. ex rel. Gonzales v. Gable, 474 N.W.2d 581, 583 (Iowa Ct.App. 1991).
Here, there is no dispute that Jamie earned $35,000 per year at his former job or that his reduction in income was voluntary. It is also clear that using Jamie's actual income, rather than his former salary, would result in a lower child support obligation. However, the district court's finding that it was "only fair to the children" to use Jamie's former income falls short of a finding that the higher support obligation is necessary to meet the children's needs and to do justice between the parties.
In asserting the district court properly employed Jamie's former income, Gracie relies solely upon the fact that Jamie voluntarily reduced his income. However, this fact alone does not justify use of his former salary in setting his child support obligation. Notably, Jamie's reduction in income occurred prior to the filing of the modification petition, and there is no evidence Jamie reduced his income in order to lessen his own obligation to support the children. Cf. In re Marriage of Kern, 408 N.W.2d 387, 389-90 (Iowa Ct.App. 1987) ("A defendant cannot voluntarily abandon his employment, reduce his wages, or by other conduct bring about a reduced income and thereby avoid, or cause the reduction of, a reasonable support order. . . ."). Rather, for several months both before and after his change in employment, Jamie was in fact receiving far less child support from Gracie than he would have been entitled to under a current application of the guidelines.
Gracie also points to no evidence, and we are not aware of any evidence, that indicates a child support obligation based upon Jamie's actual income will adversely affect Gracie's ability to meet the children's needs. Moreover, looking to the particular circumstances of this case, including the parties' employment and child care history, we cannot conclude that the use of Jamie's former salary is necessary to do justice between the parties. We accordingly modify the district court's decree to provide that Jamie's child support obligation be based upon his actual income of $28,080 per year. We remand this matter to the district court so that it may recalculate Jamie's support obligation. Costs of this appeal are allocated one-half to each party.