Opinion
No. 3-490 / 03-0350
April 14, 2004.
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
A father appeals from the physical care and child support provisions of the district court's modification decree. AFFIRMED AS MODIFIED.
Karen Volz of Ackley, Kopecky Kingery, Cedar Rapids, for appellant.
Janice McCool of McCool Law Office, Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
David Stamy appeals from the district court modification decree that awarded his former wife, Janice Stamy, the physical care of the parties' two remaining minor children, Jordan and Chelsea, ordered him to pay child support, and made that support retroactive from just over six months after he accepted service of Janice's modification petition. Upon our de novo review, Iowa R. App. P. 6.4, we affirm the award of physical care to Janice, but modify the amount of David's support obligation. In addition, while we affirm the district court's decision to order retroactive child support, we modify the decree to provide a periodic payment plan for the retroactive support obligation.
The parties' marriage was dissolved by stipulation in 1989. At that time the parties agreed David would retain the marital home and be awarded physical care of the couple's three children: Christopher, born in July 1984, Jordan, born in December 1986, and Chelsea, born in January 1988. However, the visitation schedule closely approximated shared physical care, and the parties agreed to share equally in the children's expenses. As both David and Janice worked full time, Janice's child support obligation was set at $25 per week per child, which represented one-half of the parties' child care expenses.
By the time the district court issued its modification decree, Christopher had reached his majority, enrolled in college, and was no longer eligible for child support.
By 1993 Janice had remarried, built a home near David, and quit her job as a licensed practical nurse (LPN) in order to stay home and care for her family. Over the succeeding years Janice gradually but distinctly assumed greater and greater responsibility for the children's care. They spent more time in her home than in David's, she bore a larger portion of the costs of their care, and assumed a greater role in their education and health care. Whether or not Janice undertook her increasing role against David's wishes or without his consent, the record demonstrates David acquiesced in Janice's actions.
By the time Janice filed her May 2001 petition to modify the physical care provision of the original dissolution decree, she had become the children's de facto primary caregiver. We agree with the district court that this consensual alteration in the parties' roles was sufficient to constitute a substantial change in circumstances that was not within the court's contemplation at the time the original decree was entered. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999) (outlining modification standard). We also agree Janice made the necessary further showing that she is the superior caretaker. See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). Although David is an able caretaker, Janice, a stay-at-home mother, has been and can continue to be more deeply involved in the children's care, and to more fully participate in their lives.
The district court has reasonable discretion in determining whether modification is warranted, and we will not disturb that discretion unless there is a failure to do equity. Maher, 596 N.W.2d at 565. Having reviewed the record, and giving weight to the district court's fact findings, particularly in regard to witness credibility, Iowa R. App. P. 6.14(6)( g), we conclude the transfer of physical care was both equitable and in the best interest of Jordan and Chelsea.
We therefore turn to the issue of child support. David first argues the district court erred in setting his child support obligation for two children at $1,128.69 per month, because the court failed to state the annual income it imputed to Janice in reaching that amount. We find some merit to this claim. Whether we utilize David's estimate of his net monthly income, $3,931.82, or the $3,900.30 estimate provided by Janice, applying the Child Support Guideline percentage that most nearly results in the support obligation set by the district court imputes to Janice a net monthly income of no more than $1,800. However, the evidence demonstrated the court should have imputed to Janice a minimum gross yearly income of $32,780. Accordingly, we find the court erred in setting David's child support obligation. We modify his obligation to $1,104 per month.
Janice agreed that it was reasonable to impute to her the income of an LPN, and presented evidence that LPNs in the area earned between $32,780 and $37,305. She also testified to her assumption that, given the amount of time she had been out of the work force, she would likely need to take classes and would even then reenter the field at the bottom of the salary range. In addition, the Child Support Guideline Worksheets Janice submitted to the district court alternately listed her income at $32,780, and $0.
We arrive at this amount by adopting Janice's calculations of the parties' incomes, $3,900.30 for David and $2,264.65 for Janice, as Janice's calculations utilized the correct filing statuses. While our calculation of Janice's net income resulted in a figure slightly less than her own estimate, both numbers fell within the $2,201 to $2,300 range of net monthly income for the custodial parent. Accordingly, we applied the corresponding percentage of 28.3% to arrive at David's obligation amount.
Finally, we address David's claim the district court erred in making child support retroactive to January 1, 2002, or slightly more than six months after David's June 19, 2001 acceptance of service. The district court in fact had the discretion to make such an award retroactive to three months after David accepted service of the petition, or September 19, 2001. See Iowa Code § 598.21(8) (2001). David nevertheless claims the court erred, given that he continued to pay a share of the children's expenses up to the December 2002 hearing and modification order, and Janice conceded during trial that he should be given credit for support he provided during the pendency of the action.
Although David appears to challenge the district court's decision to order any retroactive support, we conclude that, given Janice's increasing role in providing for the children's financial needs, retroactive support was appropriate. The question is whether the district court order adequately credited David for any previously-paid support. We first note that we find the amount of support David paid during the pendency of this action is that reflected in Janice's Exhibit 24: approximately $5,200 between the May 2001 filing of the modification petition and the December 2002 hearing, $4,100 of which was paid after September 19, 2001. We also note that, by starting retroactive support on January 1, 2002 instead of September 19, 2001, the court effectively gave David credit for just under three and one half months of support, or slightly more than $3,700.
In determining if David is entitled to a further credit for some or any of the remaining support, we place little weight on Janice's trial concession that David was entitled to credit for any support paid during the pendency of the action, as that concession was premised on the erroneous assumption the court could award retroactive support from the time of filing. Instead, we look to the equities. In particular, we consider Janice's credible assertions that, contrary to the original decree, she has borne the greater weight of the children's expenses.
Given all the circumstances, we decline to alter the district court's retroactive support provision. However, we note the district court did not include a periodic payment plan required by section 598.21(8). We therefore modify the court's decree to provide that David's retroactive support obligation shall be paid in twenty-four equal monthly installments, over a twenty-four month period beginning in January 2003 and ending in December 2004.
Costs on appeal are taxed three-fourths to David and one-fourth to Janice.