Opinion
No. 2-557 / 01-2037.
Filed November 15, 2002
Appeal from the Iowa District Court for Linn County, THOMAS KOEHLER, Judge.
Rob Sirowy appeals from the district court's decree granting Julie Sirowy's request to modify the parties' dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.
Stephen Jackson and Stephen Jackson, Jr., Cedar Rapids, for appellant.
John Wagner and Jeffrey Ritchie of John C. Wagner Law Offices, P.C., Amana, for appellee.
Considered by HUITINK, P.J., and VOGEL and MILLER, JJ.
Rob Sirowy appeals from the district court's decree granting Julie Sirowy's request to modify the parties' dissolution decree.
I. Background Facts and Proceedings.
The parties' marriage was dissolved on May 23, 1996. Under the terms of the decree dissolving their marriage, the parties were granted joint custody of their two children, Lindsey and Stacey. Julie was awarded physical care subject to Rob's right to visit the children as provided. Rob was ordered to pay $775 monthly child support based on his $2602.04 net monthly income and Julie's net monthly income of $1802.29.
On March 25, 1998, the decree was modified to accommodate Julie's move to Texas. As a result, Rob's support obligation was reduced to $500 per month for the months of June and July. Rob also agreed to assume responsibility for obtaining medical and dental insurance for the children, and Julie agreed to reimburse him for one-half of the cost.
These proceedings commenced with Julie's May 5, 2000 petition for additional modification of the decree. Citing her return to Iowa, increased costs of caring for the children, and Rob's increased income, Julie sought additional child support, health insurance, and visitation schedule changes, as well as related court costs and attorney fees. On April 19, 2001, Julie signed a partial satisfaction of child support judgment providing that she "received all of the child support due and owing through May 12, 2001." The parties were also able to resolve all visitation issues prior to trial.
In a November 13, 2001 ruling the trial court increased Rob's monthly child support to $1000.43 based on his $3572.95 net monthly income and Julie's $2516.37 net monthly income. The court made the increased award retroactive to August 26, 2000. Because there was evidence that the children's actual and expected visitations were less than 128 days for the year prior to trial, Rob's request for an extended visitation credit against his child support obligation was denied. The court also denied Julie's request for modification of the parties' health insurance obligations. Julie was awarded $500 trial attorney fees, and Rob was ordered to pay the court costs.
On appeal, Rob raises the following issues:
(1) The trial court erred in its calculation of Rob's child support obligation by failing to give him a child support credit for extraordinary visitation.
(2) The trial court erred in its determination of Rob's income for purposes of calculating child support by including in his income overtime wages previously earned by Rob in the past but not expected to be earned by Rob in the future.
(3) The trial court erred by ordering Rob to pay increased child support retroactive to a date prior to its ruling with no periodic payment plan as to the retroactive accrued child support obligation.
(4) The trial court erred by awarding Julie an increase in child support retroactive to a date in time to a date on which Julie had executed a satisfaction of Rob's child support obligation.
(5) The trial court erred by awarding Julie attorney fees.
Julie does not cross-appeal, but requests an award of appellate attorney's fees.
II. Standard of Review.
We review this equitable case de novo. Iowa R.App.P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but we are not bound by them. Iowa R.App.P. 6.14(6)( g).
III. The Merits. A. Extraordinary Visitation Credit.
Iowa Court Rule 9.7( 2) provides:
If the noncustodial parent's court-ordered visitation exceeds 127 days per year, the noncustodial parent shall receive a credit to the guideline amount of child support in accordance with the following table:Days Credit
128-147 25%
148-166 30%
167 or more 35%
For purposes of this credit, "days" means overnights spent caring for the child. Failure to exercise court-ordered visitation may be a basis for modification. . . .
Because the rule expressly provides that a noncustodial parent shall receive the credit, its provisions are mandatory. Iowa Code § 4.1(30)(a) (2001) (the use of the word shall imposes a duty); see Iowa Nat'l Indus. Loan Co. v. Iowa State Dep't of Revenue, 224 N.W.2d 437, 441 (Iowa 1974) (use of word shall indicates mandatory intent). The language "Failure to exercise court-ordered visitation may be a basis for modification" empowers the court to deny the credit by modifying the relevant provisions of the controlling judgment or decree. Iowa Ct. R. 9.7(2) (emphasis added); Iowa Code § 4.1(30)(c) (use of word may confers a power); Little v. Winborn, 518 N.W.2d 384, 387 (Iowa 1994) (use of word may indicates prescribed act is permissive but not required).
Under the terms of the parties' court-approved March 21, 2001 visitation stipulation, Rob was entitled to 188 qualifying days in 2001 and 194 qualifying days in 2002. Rob testified that he intended to exercise all of the court-ordered visitation provided in the parties' stipulation.
The record concerning the parties' past visitation experience is conflicting. Rob testified that he exercised at least 138 days of visitation in 2000. Julie testified that although Rob had extraordinary visitation he failed to exercise it to the extent allowed. Lindsey testified that she hoped to spend more time with Rob but only spent thirty qualifying days with Rob from June 1, 2000 to June 1, 2001. The testimony concerning Stacey's visitation indicates that she may spend one weekday overnight, some holidays, and six weeks of summer visitation with Rob.
The conflicting evidence and resulting confusion validate our conclusion that the provisions of rule 9.7(2) are mandatory and should be literally applied. Reliance on anecdotal evidence rather than the amount of court-ordered visitation recited in the controlling decree invites unending contention and compromises the stability of the court's child support judgment. Here, the terms of the controlling decree provide for at least 188 days of court-ordered visitation, and Rob is accordingly entitled to the maximum credit allowed under the rule.
The remaining question is whether modification of Rob's child support obligation is warranted based on his failure to exercise the visitation ordered. As noted earlier, the relevant court-ordered visitation was that provided for in the court's March 21, 2001 order approving the parties' visitation stipulation. Because this case was tried on June 11, 2001, any modification would require a finding that Rob failed to exercise court-ordered visitation that had not yet accrued. Because there is insufficient evidence that Rob failed to exercise court-ordered visitation, modification of Rob's child support obligation by denying or reducing his extraordinary visitation credit is unjustified.
B. Income Issues.
At trial Rob claimed his net monthly income was $3185.16. The district court determined based on Rob's overtime earnings history that his net monthly income was $3572.95.
Overtime wages fall within the definition of gross income for purposes of computing child support. In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992). When the receipt of overtime is speculative and uncertain, or a parent is forced to work overtime to meet a burdensome child support obligation, overtime compensation should not be included in gross income. Id.
There is no evidence indicating Rob will be forced to work overtime to pay his child support. The evidence concerning Rob's receipt of $2000-$5000 of overtime compensation for the four-year period prior to trial is not disputed. Despite his claim that future receipt of overtime compensation is uncertain, Rob admitted in his deposition that he expected to receive approximately the same amount of overtime in 2001 as he previously earned. At best, the record indicates Rob's employer intended to reduce, but not eliminate, its overall overtime expenses. Additionally, there is evidence Rob earned additional disposable income by competing in outdoor competitions. Because the resolution of this issue implicates the credibility of Rob's assertion concerning overtime and other sources of income, we defer to the trial court's findings of fact and affirm on this issue.
C. Retroactive Modification.
Judgments for child support subject to modification may be retroactively modified only from three months after the date the notice of the pending modification petition is served on the opposing party. Iowa Code § 598.21(8). A retroactive modification increasing child support shall include a periodic payment plan. Id.
Rob correctly notes that retroactive modification of an increased child support award is discretionary. In re Marriage of Ober, 538 N.W.2d 310, 313 (Iowa Ct.App. 1995). We have declined to make a retroactive modification when the record shows that the grounds for modification did not exist at the time the petition was filed. In re Marriage of Keopke, 483 N.W.2d 612, 614 (Iowa Ct.App. 1992). An accrued support obligation greater than the obligor's ability to pay also weighs against a retroactive award. In re Marriage of Barker, 600 N.W.2d 321, 324 (Iowa 1999).
Rob argues that his increased child support should not be made retroactive because his child support should have been reduced instead of increased, he was entitled to an extraordinary visitation credit, and Julie signed a satisfaction of judgment for all child support owed through May 12, 2001. We find no merit in Rob's arguments.
Beyond citing the court's discretion to make the award retroactive, Rob cites no authority supporting his claim that the availability of the extraordinary visitation credit or filing a satisfaction of judgment precludes retroactive modification of child support. We therefore decline to consider these arguments. See Iowa R.App.P. 6.14(1)( c).
Julie concedes the court's error in failing to order a periodic payment plan for Rob's child support arrearage resulting from retroactive modification. We agree and the matter of periodic payments shall be addressed by the trial court on remand.
D. Trial Attorney Fees.
Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). To overturn an award the complaining party must show that the trial court abused its discretion. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998). Attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Goodwin, 606 N.W.2d 315, 324 (Iowa 2000). We find no abuse of discretion in the trial court's award of $500 in attorney fees to Julie.
E. Appellate Attorney Fees.
An award of appellate attorney fees is not a matter of right. In re Marriage of Wendell, 581 N.W.2d 197, 201 (Iowa Ct.App. 1998). We 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. Id. After considering these factors, we conclude each party should pay his or her own attorney fees and one-half of the costs.
IV. Conclusion.
The district court's modification decree is affirmed as modified. We remand to the trial court for further proceedings consistent with this opinion. On remand the trial court shall recalculate Rob's child support by allowing the maximum extraordinary visitation credit and establishing a periodic payment plan for Rob's child support arrearages.