Opinion
No. 2-932 / 02-0778
Filed January 15, 2003
Appeal from the Iowa District Court for Scott County, David E. Schoenthaler, Judge.
Lori Wolfe appeals the district court's order modifying the child custody provisions of her dissolution decree. AFFIRMED.
James Tappa of Spector, Tappa Nathan, Rock Island, Illinois, for appellant.
Patrick Wolfe, Eldridge, Illinois, pro se.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Lori Wolfe appeals the district court's order modifying the child custody provisions of her dissolution decree, but applying the Iowa Code section 598.21(8) (2001) provision regarding retroactivity to the award. She contends the parties' dissolution decree supplies the retroactive date on which the child support should have been modified. Because this is an equity case, our review is de novo. Iowa R.App.P. 6.4.
Patrick and Lori Wolfe were divorced in 1996. Lori was awarded primary physical care of the parties' two minor children, and Patrick was ordered to pay child support in the bi-weekly amount of $347.79. The district court's calculation of the child support was based on Patrick's earnings at the time of the decree. Patrick earned $37,960 annually for a forty-hour workweek, with the opportunity to work substantial overtime hours. Although Patrick had elected to work overtime only once in the six months prior to the entry of the dissolution decree, the district court recognized Patrick's potential to make considerably more money. In its findings, the district court stated:
[T]he Court will Order, however, that on February 1 of each year a W-2 form shall be provided to the respondent or her attorney indicating the income made the previous year and that the child support for the eleven months of that year immediately following 1st shall be based on the income as shown in that W-2 form excepting that a reduction in income will not be sufficient change of circumstances to allow a modification.
Patrick failed to provide any W-2 forms to Lori until Lori requested one in May 2001. Patrick's 2000 W-2 form indicated he earned in excess of $75,000. Lori filed a petition to modify on May 18, 2001. In its November 2001 order, the district court granted the motion, increasing the child support to $1307 per month, and making the award retroactive commencing February 1, 2001. Patrick filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), arguing section 598.21(8) limits the retroactive application of child support modifications to three months after the date of the notice of the petition for modification is served. In its ruling on Patrick's motion to reconsider, the district court agreed that section 598.21(8) applied to Lori's modification action, and modified the child support award commencing August 23, 2001.
On appeal, Lori argues the explicit language of the 1996 dissolution decree requires the modification commence on February 1, 2001. Although the district court stated in its findings that the child support would be adjusted on the first of February of each year, the court never included this language in the decretal portion of the order. We therefore doubt that the February 1 language is a part of the order. Regardless, the trial court ruled the child support modification scheme contained was not self-executing. We agree. Therefore, we cannot modify the child support award to retroactively begin any earlier than August 23, 2001.