Opinion
No. 4-347 / 03-1712.
July 14, 2004.
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey J. Larson, Judge.
Dimiter Vutov appeals the district court's modification of his child support obligation and its failure to modify the parties' visitation provision. AFFIRMED AS MODIFIED.
Dimiter Vutov, St. Paul, Minnesota, appellant pro se.
Shannon Simpson of Telpner, Peterson, Smith, Ruesch, Thomas Simpson, Council Bluffs, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
I. Background Facts Proceedings
Dimiter Vutov and Angela Houston were formerly married. They have one child, Michael, born in October 1992. Dimiter is a native of Bulgaria. At the time of the dissolution proceedings the parties lived in Iowa, but were licensed to practice law in Nebraska. Dimiter had a job with the University of Iowa, where he had annual income of about $4200, plus income from another job of about $12,000. Angela had temporary employment as a telemarketer.
The parties' dissolution decree was entered on December 20, 1999, and was based on the parties' stipulation. The decree awarded the parties joint legal custody of Michael, with Angela to have physical care. Dimiter was ordered to pay child support of $250 per month. The visitation schedule provided Dimiter was to have visitation every other weekend and one day per week. If he remained in Iowa or Nebraska, he would have two one-week periods of visitation each summer. If Dimiter did not live in either of those two states, he would receive two one and one-half week periods of summer visitation. Dimiter also receives visitation each year on New Year's Day and Bulgarian Easter. The decree provided, "[Dimiter] shall not be allowed to remove the said minor child from the United States without the express, written consent of [Angela]."
Dimiter moved to Minnesota and began employment with Thomson Legal and Regulatory/West (West Publishing). He presently has annual income of about $39,000, plus credits towards insurance, which increase his pay to $44,000. Dimiter remarried and has a child with his new wife. Angela is employed by Nebraska Legal Services, and earns $37,100.
Angela filed a petition for modification in August 2002, seeking an increase in Dimiter's child support obligation. Dimiter sought an increase in visitation. The district court found Dimiter's child support obligation deviated by more than ten percent from the amount that would currently be due, and under Iowa Code section 598.21(9) (2003), increased his child support obligation to $591 per month. The court also found Dimiter had failed to show a substantial change in circumstances regarding visitation and denied the request to modify visitation. Dimiter appeals. II. Standard of Review
At the same time he filed a notice of appeal, Dimiter also filed a motion to extend the time to file post-trial motions. The district court determined it had been deprived of jurisdiction by the filing of the notice of appeal, and did not consider the motion to extend time.
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. "In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them." Iowa R. App. P. 6.14(6)( g).
III. Child Support A.
At the time of the parties' divorce, both of the parties had graduated from law school, but were unable to find employment in their chosen field. They each had student loans of about $100,000. At the modification hearing, Dimiter argued that based on these circumstances the parties had mutually agreed that his child support obligation would be limited to $250 per month. He claims that because his child support obligation was based on the parties' agreement, and not their incomes, it should not be subject to modification.
We first note that even if a child support obligation is based on a stipulation, it may still be subject to modification under the ten-percent rule of section 598.21(9). In re Marriage of Wilson, 572 N.W.2d 155, 157 (Iowa 1997). Furthermore, on our de novo review, we note that application of the child support guidelines to the parties' incomes at the time of the divorce would result in a child support obligation of about $250 per month. We conclude Dimiter's child support obligation is subject to modification under section 598.21(9).
B.
Dimiter also claims the district court improperly calculated his gross annual income as $44,170.82. He points out that his pay stub shows his regular annual income is $39,000. Dimiter additionally received "credits" from his employer, which he could apply to health insurance or other benefits. Dimiter asserted the "credits" should not be attributable as income to him.
To ascertain a party's income for the purposes of determining child support, we must determine the parent's current monthly income from the most reliable evidence presented. In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). We note that Dimiter's pay stub does not have any amount under employer-paid benefits. The stub lists certain benefits as being either before-tax or after-tax deductions. We conclude the "credits" are considered by the employer as income to Dimiter and should be included in his gross income for purposes of calculating child support.
C.
Dimiter contends the district court should have permitted the deduction of the amount of his health insurance premium in calculating his net monthly income. For purposes of applying the child support guidelines, a party's net income is calculated by subtracting specific deductions set forth in Iowa Court Rule 9.5. See Spencer ex rel. Spencer v. White, 584 N.W.2d 572, 574 (Iowa Ct. App. 1998). Iowa Court Rule 9.5(6) permits a deduction from gross monthly income for a "Health insurance premium either deducted from wages or paid by a parent for health insurance so long as the child is covered by the policy."
Dimiter testified he carries Michael on his health insurance. He also testified he thought the insurance provided benefits only in Minnesota. While Michael is covered by Dimiter's policy, it is of no practical benefit to him except in Minnesota. Michael lives with Angela in Carter Lake, Iowa. We conclude the amount of Dimiter's health insurance premium would not be a proper deduction under the facts of this case.
D.
Dimiter claims the district court should have granted him two qualified additional dependent deductions. The child support guidelines permit a deduction for qualified additional dependents. Iowa Ct. R. 9.5(10); State ex rel. Miles v. Minar, 540 N.W.2d 462, 464 (Iowa Ct.App. 1995). The qualified additional dependent deduction is considered a deduction for any child for whom parental responsibility has been established as defined in rule 9.6. See Spencer, 584 N.W.2d at 574.
At the time of the modification hearing, Dimiter had one child with his new wife, and was expecting a second child. Dimiter was granted a deduction for one qualified additional dependent, for the child then in existence. Because Dimiter's second child had not been born at the time of the modification hearing, he did not meet the criteria of Iowa Court Rule 9.6 with regard to that child.
E.
Finally, Dimiter asserts the district court should have deviated from the child support guidelines due to his excessive debt and his obligations to his new family. Iowa Court Rule 9.9 permits variance from the guidelines if application of the guidelines would be "unjust or inappropriate." The district court did not rule on this issue, and we question if it has been preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (holding issues must be raised and decided by the district court before they will be decided on appeal).
Moreover, even if we determined this issue had been preserved for our review, we would find Dimiter had failed to show sufficient reason to deviate from the child support guidelines. There is a rebuttable presumption that the amount of child support which would result from the application of the guidelines is the correct amount of child support to be awarded. Iowa Ct. R. 9.4; In re Marriage of Bergfeld, 465 N.W.2d 865, 869 (Iowa 1991). We note both parties have large educational debts, and determine this is not a sufficient reason to deviate from the guidelines.
IV. Visitation
Dimiter appeals the district court's decision finding he had not shown a sufficient change in circumstances to modify the parties' visitation schedule. Dimiter asked to have Michael for seventy-percent of the time when Michael has at least four consecutive non-school days, and he sought to take Michael abroad.
In order to modify visitation, a party must show a change of circumstances since the filing of the decree. Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct.App. 1994). The degree of change required in a modification of visitation rights is much less than the change required in a modification of custody. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000). A party's move to another state may be considered a sufficient reason to modify a visitation schedule. Id.
The district court determined the dissolution decree had provided for the contingency that Dimiter might move to another state. The decree provided that if Dimiter did not live in Iowa or Nebraska, his summer visitation would be expanded from a total of two weeks to a total of three weeks.
While the decree provided for an increase in Dimiter's summer visitation if he moved to a state other than Iowa or Nebraska, the decree did not address his regular visitation. Dimiter testified that because he now lives in Minnesota, he is unable to exercise visitation every other weekend and one day per week, as set forth in the dissolution decree. We determine Dimiter should be able to exercise this visitation as he is able, and in addition, he should receive one-half of Michael's spring and Christmas breaks from school. We increase this visitation because Michael should have "maximum continuing physical and emotional contact with both parents. . . ." Iowa Code § 598.41(1)(a).
We agree that the original decree did not permit Dimiter to take Michael out of the United States without Angela's express written consent, and Dimiter had not shown sufficient reason to modify this provision.
V. Attorney Fees
Angela seeks attorney fees for this appeal. Appellate attorney fees are discretionary and are determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We determine each party should pay his or her own appellate attorney fees.
We affirm the decision of the district court, except we have modified Dimiter's visitation. Costs of this appeal are assessed one-half to each party.