Opinion
No. 2-704 / 02-0295
Filed October 30, 2002
Appeal from the Iowa District Court for Henry County, John G. Linn, Judge.
Jayson Ditsworth appeals from the district court's order modifying the parties' consent decree. AFFIRMED.
J. Bryan Schulte of Schulte, Hahn Swanson, Burlington, for appellant.
Michael Vance of Vance Law Offices, Mount Pleasant, for appellee.
Considered by Huitink, P.J., and Zimmer and Eisenhauer, JJ. Miller, J.
takes no part.
Jayson Ditsworth appeals from the district court's ruling modifying the provisions of a consent order entered in 1999. He claims the court should not have ordered him to pay child support. He also takes issue with the manner in which child support was calculated. We affirm.
I. Background Facts and Proceedings.
Lisa Brown, now known as Lisa Nelson, and Jayson Ditsworth are the parents of Jessica, born in 1994. The parties have never been married. In September of 1998, Lisa filed a petition to set child support and establish a visitation schedule. Pursuant to agreement of the parties, the district court entered a consent order in March 1999, which addressed the issues of custody, physical care, and child support. The parties agreed to joint custody with joint physical care. Under their schedule of shared parenting, Lisa had physical care of Jessica each week from 12:00 p.m. on Sunday until Wednesday at 5:00 p.m. and Jayson had physical care of Jessica from 5:00 p.m. on Wednesday until 12:00 p.m. on Sunday. Neither party was ordered to pay the other child support. Jayson was ordered to maintain health insurance for Jessica. The consent order provided that "joint physical care would be in the best interests of the child, at least until such time as she starts school in the year 2000."
In November 2000 Lisa petitioned the district court to modify the physical care and child support provisions of the original consent order. She sought primary physical care of Jessica and child support. Jayson resisted claiming there had not been a substantial change in circumstances. He counterclaimed for primary physical care and child support in the event the trial court concluded a substantial change in circumstances had occurred.
Following trial, the district court found the evidence did not warrant a modification of joint physical care. However, the court did find the parties' shared care arrangement should be modified because of Jessica's school schedule. The court ordered the parties' parenting time to alternate in two-week blocks with the change occurring on Fridays. The court preserved the alternating holiday schedule established in the original consent order. The court further found Jayson's substantially increased income warranted an award of child support. The court ordered Jason to pay child support in the amount of ninety-five dollars per week. Jayson appeals.
II. Scope of Review.
In modification proceedings, our review is de novo. Iowa R.App.P. 6.4; In re Marriage of Sires, 506 N.W.2d 813, 814 (Iowa Ct.App. 1993). We give weight to the findings of the trial court, which had an opportunity to view the demeanor of the witnesses when testifying. However, we are not bound by them. Iowa R.App.P. 14(6)( g); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
III. Discussion.
Jayson does not challenge the court's ruling regarding joint physical care or its decision to change the parties' parenting timetable because of Jessica's school schedule. His complaint on appeal concerns the trial court's decision to modify the consent order to require him to pay child support. He also claims the formula used to calculate child support was incorrect.
After Lisa brought her original petition for support and visitation in 1998, the court approved the consent order which incorporated the parties' negotiated settlement of those and other issues. Iowa Code section 600B.31 (2001) provides the district court with the continuing jurisdiction to address issues relating to the custody and support of Jessica. As the party seeking to modify the existing child support order, Lisa was required to prove there has been a substantial change in circumstances by a preponderance of the evidence. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). "[A] substantial change of circumstances exists when the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines. . . ." Iowa Code § 598.21(9). The change must be permanent or continuous, rather than temporary. State ex rel. Pfister v. Larson, 569 N.W.2d 512, 514 (Iowa Ct.App. 1997). Additionally, Lisa was required to show that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice. Id. Finally, she was required show that the change in circumstances was not within the contemplation of the trial court when the original decree was entered. Id.
Jayson cites In re Marriage of Hess, 522 N.W.2d 861, 864 (Iowa Ct.App. 1994) for the proposition that the ten-percent deviation rule does not apply when there is a stipulation between the parties which states neither parent is to pay child support to the other. However, this is only true when it does not adversely affect the best interests of the child. Hess, 522 N.W.2d at 854.
When the consent order was entered in 1999, Jayson had a gross annual income of $31,908. In 2000, his income increased to $49,866. At his rate of pay on the date of trial, Jayson was on pace to earn $75,825 in 2001. Meanwhile, Lisa's income remained steady at a gross annual income of roughly $13,000. The significant increase in Jayson's income amounts to a substantial change of circumstances for child support modification purposes. See Iowa Code § 598.21(8)(a), (9). Clearly, any other finding would be adverse to Jessica's best interest.
The only remaining issue is the district court's computation of child support. The district court set child support using the offset method approved in In re Marriage of Fox, 559 N.W.2d 26 (Iowa 1997) and followed by our court in In re Marriage of Swanson, 586 N.W.2d 527 (Iowa Ct.App. 1998). Where one child spends equal time in two households, each parent is deemed a noncustodial parent on the one-child guidelines chart for purposes of calculating the support each would owe the other. Fox, 559 N.W.2d at 28. The lesser support figure is subtracted from the greater support figure to reach the final child support amount to be paid to the party with the lesser income. Id. The difference is not subject to any further reduction to credit time spent with the greater income parent. Id.
In the case at hand, the district court first determined the incomes of the respective parties. The court averaged Jayson's income over the most recent three years and used that figure to determine the noncustodial child support obligation. Lisa does not challenge the district court's decision to average Jayson's income. Based on a net annual income of $31,670, Jayson's support figure amounted to $572.69. The court computed Lisa's $160.75 support figure based on a net annual income of $10,657. The difference of $411.94 per month was rounded down to a payment of $95 per week.
Jayson contends this figure should be reduced even further. He contends he should receive credit for time spent as a noncustodial parent pursuant to the guidelines. Iowa Ct. R. 9.7(2). We disagree. In making this argument, Jayson assumes that he is the noncustodial parent. Jessica will spend equal time with each parent; Jayson is no more the noncustodial parent than is Lisa.
In the alternative, Jayson contends the district court should have utilized the formula handed down in In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct.App. 1994). Relying on Gilliam, he contends support should be paid only when the child is in the physical care of the other party. Simply put, Fox specifically rejected this approach. Fox, 559 N.W.2d at 28.
IV. Appellate Attorney Fees.
Lisa seeks an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). 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. Lisa was obligated to defend the trial court's decision on appeal and has done so successfully. Additionally, Jayson's ability to pay for the expense related to this obligation exceeds Lisa's. We award Lisa $500 in appellate attorney fees.
V. Conclusion.
We agree with the conclusions reached by the district court. The modification decree is both equitable and in the best interest of Jessica. Accordingly, we affirm.