Opinion
No. 1-880 / 01-1266.
Filed March 13, 2002.
Appeal from the Iowa District Court for Dubuque County, LAWRENCE H. FAUTSCH, Judge.
Respondent appeals the district court dismissal of his modification petition. AFFIRMED.
Darin S. Harmon and Cory R. Thein, of Kintzinger Law Firm, P.L.C., Dubuque, for appellant.
Robert L. Sudmeier and Norman J. Wangberg, of Fuerste, Carew, Coyle, Juergens Sudmeier, P.C., Dubuque, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
The marriage of Dawn and Steven Wolf was dissolved on December 30, 1997, pursuant to a stipulated decree. The decree awarded the physical care of the parties' four minor children to Dawn, awarded two dependent tax exemptions to each party, and made the following provisions regarding child support and post-secondary education subsidies:
The stipulation references all four children as minors, even though the oldest child was nearing nineteen years of age at the time of the dissolution.
[Steven] shall pay child support for the minor children in the amount of $1,600.00 per month . . . which amount is in conformance with the Iowa Supreme Court Guidelines.
Tax returns shall be exchanged by the parties each year and the Iowa Supreme Court Child Support Guidelines applied to determine the appropriate amount of support payable by [Steven] to [Dawn].
. . .
[Steven's] child support obligation shall continue for each child until that child reaches the age of eighteen (18) or graduates from high school, whichever occurs later, unless otherwise earlier emancipated. The issue of post-secondary education subsidy for each child shall be deferred until such time as that child's post-secondary education shall become imminent.
At such time as [Steven's] child support obligation shall pertain only to three children, then the parties shall exchange current Affidavits of Financial Status. The Iowa Supreme Court Child Support Guidelines shall be applied to determine the appropriate amount of child support payable by [Steven] to [Dawn]. . . .
Identical provisions controlled Steven's obligation for two children, and then one child.
Child support shall also include thirty percent (30%) of the gross amount of [Steven's] bonus that is earned and distributed to employees every March 15th.
. . .
[Steven] shall pay for 100% of all post-secondary education expenses for the parties' children.
On October 23, 2000, Steven filed a petition to modify the decree. Relying on the fact two of the children were over eighteen and no longer in high school, Steven sought a reduction in his child support obligation. Steven also requested a reduction in his post-secondary education expenses obligation and sought both the dependent tax exemptions allocated to Dawn. The district court dismissed the petition. Finding no substantial change in circumstances, it noted Steven was requesting modification but seeking a form of relief akin to a declaratory judgment:
The parties are in reality requesting that the Court construe various provisions of the Judgment and Decree. . . . However, absent a request for a declaratory judgment or a stipulation by the parties that the Court may construe the language of the Stipulation and Agreement which was merged into the Judgment and Decree, [Steven's] petition to modify must fail.
We concur with the district court's assessment. The terms of the decree are subject to modification only upon a demonstrated substantial change in circumstances, provided those circumstances were not within the decretal court's contemplation. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). Clearly, that standard has not been met.
The stipulation and decree not only contemplates the reduction of Steven's child support obligation as each child reaches the age of eighteen or graduates from high school, but specifically outlines a method for reduction. As Steven's entitlement to a decrease in his monthly support obligation is provided for in the original decree, the only issue relevant to this modification proceeding is whether there are grounds to alter the reduction terms. The same is true in regard to the remainder of issues properly raised on appeal.
Steven seeks to alter his post-secondary education subsidy obligation by reference to Iowa Code § 598.21(5A)(a)(3) (West Supp. 1997), which limits how much a parent can be required to contribute to a child's post-secondary expenses. As that section was enacted over six months prior to the entry of the stipulation, it cannot constitute a substantial change in circumstance. In re Marriage of Feustel, 467 N.W.2d 261, 263 (Iowa 1991). Steven also points to § 598.21(5A)(a)(3) as rendering the subsidy provision both unconstitutional and unenforceable. Putting aside the fact the obligation was voluntarily undertaken, as opposed to court-ordered, his contentions go only to the validity of the original decree. See In re Petition of Bisenius, 573 N.W.2d 258, 260 (Iowa 1998) ("The res judicata consequences of a final unappealed judgment are not altered by the fact that the judgment may have rested on incorrect legal principles.").
Steven is entitled to a modification only if he can establish the existence of a new and previously uncontemplated fact. As the increased ages and shifting statuses of the children were well within the contemplation of the district court at the time of the dissolution, they cannot constitute substantial and material changes in circumstances. Although Steven argues the cumulative obligations under the decree have become increasingly burdensome, despite a steady rise in his wage income and an average yearly bonus of nearly $90,000, this is not the type of financial change warranting modification. See, e.g., In re Marriage of Rolek, 555 N.W.2d 675, 679-80 (Iowa 1996) (finding change of exemption allocation justified due to tax consequences resulting from alteration of parent's income status); In re Marriage of Cooper, 524 N.W.2d 204, 207 (Iowa Ct. App. 1994) (finding reduction of post-secondary education subsidy warranted where parent's income drastically reduced by contraction of serious and debilitating disease).
Steven may well be entitled to an alteration of his support obligations, based upon the relative income of the parties and the number of children eligible for support. However, this is accomplished through application of the terms of the original decree and not by seeking a modification of those terms. To the extent the parties dispute the interpretation of any stipulated provisions, such matters cannot be addressed by the district court under a modification request. We therefore affirm the court's dismissal of the modification petition. In making this ruling, we do not address the availability or the advisability of any particular course of action Steven may follow in pursuit of his desired outcome.
Steven's requests for attorney fees are denied. However, given the relative incomes of the parties and the fact Dawn was forced to defend this matter on appeal, we award her $1,000 in appellate attorney fees. See In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct. App. 1999). Costs are assessed to Steven.
AFFIRMED.