Opinion
No. 1-837 / 01-0102.
Filed February 20, 2002.
Appeal from the Iowa District Court for Hancock County, JON S. SCOLES, Judge.
Petitioner appeals from the child support provisions of a modification decree. AFFIRMED AS MODIFIED.
Philip Garland, Garner, for appellant.
John Sorensen, Clear Lake, for appellee
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Cathleen Atwell, f/k/a Cathleen Gayken, appeals from the child support provisions of the order modifying her dissolution decree with Mark Gayken. We conclude the district court properly applied the child support guidelines but erred in its retroactive modification of Mark's child support obligation.
I. Background Facts and Proceedings.
The Iowa District Court for Hancock County entered a decree of dissolution of the marriage of Cathleen and Mark on February 24, 1998. Pursuant to a stipulation, the decree granted Cathleen primary physical care of their four children, Joshua, Matthew, Rachel, and Nathaniel. Mark was ordered to pay child support of $1,175 per month for the four children.
Cathleen had difficulty parenting Joshua, who began living with Mark sometime prior to September 1, 1998, by agreement of the parties. Mark filed a petition in Iowa seeking modification of physical care in March of 1999. Cathleen responded by filing an action in New York where she was then living. Mark voluntarily dismissed the Iowa modification proceeding and appeared in the litigation pending in New York. After the New York court failed to adjudicate issues pertaining to Joshua's custody and child support, Mark filed this modification action in June of 2000 seeking physical care of all of the children. Cathleen was served with process on June 27, 2000.
In his trial testimony, however, Mark only requested primary physical care of Joshua and Matthew. Following a trial, the district court modified the decree. It granted Mark physical care of Joshua, and allowed Cathleen to retain physical care of the three other children.
The district court found Mark's net monthly income is $2,856 and imputed net monthly income to Cathleen in the amount of $954. Using these net income figures, the court then applied the guidelines and set Mark's child support obligation at $1,111 per month for the three children in Cathleen's care and ordered Cathleen to pay support in the amount of $195 per month for Joshua. Thus, the court concluded the guidelines entitled Cathleen to net monthly support of $916.
However, the district court further concluded the special circumstances of this case dictated the change in support should be retroactive to September of 1998 when Joshua began living with Mark. Accordingly, the court found Mark should receive a credit totaling $7,252, and reduced his child support obligation by $200 per month for thirty-six months. Cathleen appeals.
II. Standard of Review.
The standard of review accorded applications to modify support orders is de novo. In re Marriage of Robbins, 510 N.W.2d 844, 844 (Iowa 1994).
III. Retroactive Modification of Child Support for Joshua.
On appeal, Cathleen contends the court should not have modified the decree retroactively to the date Joshua began living with Mark. We agree. Iowa Code section 598.21(8)(k) provides that "[j]udgments for child support . . . which are subject to modification may be retroactively modified only from three months after the date the notice of the pending petition for modification is served on the opposing party." We acknowledge the equitable considerations which motivated the district court to conclude Mark's obligation should be decreased from the date when Joshua began living with his father. Joshua had lived with his father pursuant to an agreement of the parties for almost two years before this modification action was filed. Mark recognized the inequity resulting from his ongoing child support obligation for Joshua under the changed circumstances and initiated a modification action in March of 1999. However, he voluntarily dismissed it after Cathleen commenced litigation against him in New York. For reasons not explained in the record, the New York court did not resolve the issues of Joshua's physical care and Mark's child support obligation that would have been presented in the aborted Iowa modification proceeding.
Nonetheless, our legislature has limited the court's authority to remedy inequities of the type faced by Mark. Iowa Code section 598.21(8)(k) authorizes retroactive modification of child support "only from three months after the date the notice of the pending petition for modification is served on the opposing party." In this case, Cathleen was served with process on June 27, 2000. Under the statute, Mark's support obligation can be modified retroactively only to the month of October 2000. See In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa 1994) (stating that a court cannot ignore statutory mandates in the interest of balancing equities among the parties). The district court therefore erred when it ordered the modification retroactively to September of 1998.
IV. Application of the Child Support Guidelines.
Cathleen asserts the court erred in (1) refusing to deviate from the child support guidelines; (2) calculating Mark's net income; (3) failing to consider the per-child tax credits; and (4) failing to exclude the pre-tax dollars used to pay medical bills.
A. Refusal to Deviate from the Guidelines .
Cathleen first asserts that because of the disparity in the parties' incomes and earning capacities, the district court should have deviated from the child support guidelines and awarded her increased support. The court estimated Mark's annual income at $48,131 and imputed income to Cathleen at the minimum wage, or $954 per month. The court concluded the child support guidelines required Mark to pay 38.9 % of his monthly income for three children and Cathleen to pay 20 % of her net monthly income for the support of one child.
Iowa Code section 598.21(4)(a) (1999) provides in pertinent part:
There shall be a rebuttable presumption that the amount of child support which would result from the application of the guidelines prescribed by the supreme court is the correct amount of child support to be awarded. A variation from the guidelines shall not be considered by a court without 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.
We are unpersuaded by Cathleen's contention the court should have deviated from the guidelines. The only special circumstance Cathleen alleges in support of her contention is the fact Mark earns more than she does. We believe something more than a mere disparity in earnings is necessary to support a deviation from the guidelines in that the guidelines arguably take such disparities into account. The guidelines themselves note that while they "cannot take into account the specific facts of individual cases, they will normally provide reasonable support." We therefore affirm the district court's application of the child support guidelines.
B. Bonus .
Cathleen next directs the court's attention to Mark's November 2000 pay stub which notes a "bonus" of $3,157, and argues the court erred in failing to include this in its calculation of Mark's income. The Iowa Supreme Court has clearly indicated that all income that is not anomalous, uncertain, or speculative should be included when determining a party's child support obligation. See In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992). Income need not be guaranteed to be included in the determination of one's ability to pay child support. Seymour v. Hunter, 603 N.W.2d 625, 626 (Iowa 1999). History of earnings in recent years is the best test of whether a bonus payment is expected or speculative. Id. In calculating the effect of bonuses, the court should consider and average them as earnings over recent years and decide whether the receipt of an annual payment should be reasonably expected. Id.; In re Marriage of Russell, 511 N.W.2d 890, 893 (Iowa Ct. App. 1993).
Upon our de novo review of the record, we conclude the district court did not err in excluding the bonus from Mark's income. Nothing in the record indicates the frequency or predictability of Mark's bonus. The record contains no history to guide our determination of whether the bonus "should be reasonably expected" prospectively. See Seymour, 603 N.W.2d at 626. In fact, Cathleen admits "[t]here was absolutely no testimony concerning this bonus, whether it was annual or a one-time bonus."
C. Per-child Tax Credits and Pre-tax Expenditures for Medical .
Cathleen contends the district court erred in failing to (1) "consider tax credits of $500 per child" and (2) "exclude pre-tax dollars of income used to pay medical." Cathleen's appellate brief cites no authority in support of these assertions and we find them to be without merit.
V. Cathleen's Request for Appellate Attorney Fees.
Cathleen seeks an award of attorney fees and costs. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct. App. 1994). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Roberts, 545 N.W.2d 340, 345 (Iowa Ct. App. 1996). We believe an award of costs and fees is not appropriate in this case.
VI. Conclusion.
We affirm the district court's determination of the amounts of the parties' monthly child support obligations under the guidelines. Effective October 1, 2000, Mark's support obligation for three children is $1,111 per month and Cathleen's support obligation for one child is $195 per month. Cathleen's obligation shall be set off against Mark's. See In re Marriage of Will, 489 N.W.2d 394, 400 (Iowa 1992). In order to equitably effectuate the retroactive feature of this modification, Mark's monthly obligation will be reduced to $766 per month for twenty-seven months commencing in March of 2002.
AFFIRMED AS MODIFIED.