Opinion
No. 0-404 / 99-1280
Filed August 16, 2000
Appeal from the Iowa District Court for Jasper County, Paul R. Huscher, Judge.
Calvin Leavens appeals from the district court's ruling in a modification action. AFFIRMED.
E. Eugene Knopf of Walker, Knopf Billingsley, Newton, for appellant.
Dennis F. Chalupa of Brierly Law Office, Newton, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Calvin Leavens appeals from the district court's ruling in a modification action. We affirm.
Calvin Leavens and Edie Moss (née Mortenson) are the parents of Tanner Mortenson, born in April of 1987. Calvin and Edie never married. Calvin rarely had contact with Tanner or paid any support until Edie filed a paternity action. Calvin's paternity was established in December of 1995. At that time, the district court ordered Calvin to pay $340 per month in child support and granted him visitation. However, the court left sole legal custody with Edie.
In April of 1999, Edie filed a petition to modify the original order. She sought an upward adjustment in child support based on an increase in Calvin's monthly earnings. Calvin filed an answer to the modification petition in which he sought joint legal custody and claimed Tanner's birth certificate should be changed to show Calvin as his father. The trial court modified child support upward to $414.86 per month but declined Calvin's requested modifications.
Calvin now appeals. He argues the trial court erred by: (1) denying his request to change Tanner's last name; (2) denying Calvin's request for joint legal custody; (3) incorporating Calvin's incentive pay into the child support calculation; and (4) finding Edie's tax filing status was married filing separately. Edie seeks appellate attorney fees.
I. Scope and Standard of Review . Our review of a district court's modification of a dissolution decree is de novo. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998) (citations omitted). However, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. Id. (citation omitted).
A dissolution court may modify child support and alimony provisions of a dissolution decree when there has been a substantial change in circumstances. Iowa Code § 598.21(8) (1997). The party seeking modification must prove the change in circumstances by a preponderance of the evidence. Rietz, 585 N.W.2d at 229. The following relevant principles may be considered when ruling on a petition for modification:
(1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice; (4) the change in circumstances must be permanent or continuous rather than temporary; (5) the change in financial conditions must be substantial; and (6) the change in circumstances must not have been within the contemplation of the trial court when the original decree was entered.
Id. (quoting In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983)).
II. Name Change . Calvin cites Iowa Code section 600B.36 in support of his contention that his name should be placed on Tanner's birth certificate. Iowa Code chapter 600B governs paternity actions. Section 600B.36 provides:
Upon entry of a judgment determining the paternity of a child the clerk of the district court shall notify in writing the state registrar of vital statistics of the name of the person against whom such judgment has been entered, together with such other facts disclosed by the records as may assist in identifying the record of the birth of the child . . . .
While this section requires information to be sent to the state registrar of vital statistics, there is no authority for changing the child's name or adding the father to the birth certificate. Furthermore, even if this issue had merit and authority, it was within the contemplation of the trial court at the time the paternity decree was entered and should have been raised at that time. Calvin concedes as much, stating in his brief "[t]he Court could have ordered the name of the child to that of the Defendant father in December of 1995, but did not do so." There is no indication Calvin raised this matter at time of the original paternity proceeding or if he did, that he ever appealed the district court's denial of the name change. This is not a matter to be collaterally attacked in a modification proceeding. We affirm on this issue.
II. Joint Legal Custody . Calvin sought joint legal custody because, according to Calvin, Tanner is involved in too many activities and has less time to spend with his father. Calvin asserts it would be easier for him to be more involved with Tanner if he had joint legal custody, since it would give him access to records and a say in some of the decisionmaking regarding Tanner's activities. He also claims that a parent who pays child support automatically triggers an entitlement to joint legal custody. Calvin also speculates joint legal custody would solve the communication problems between himself and Edie. In support of his position, Calvin cites Iowa Code sections 600B.40 and 598.41(3).
Section 600B.40 states:
In determining the visitation or custody arrangements of a child born out of wedlock, if a judgment of paternity is entered and the mother of the child has not been awarded sole custody, section 598.41 shall apply to the determination, as applicable, and the court shall consider the factors specified in section 598.41, subsection 3, including but not limited to the factor related to a parent's history of domestic abuse.
(emphasis added). This section clearly provides that if sole custody has been awarded to the mother, then section 598.41(3) shall not be applied. Calvin concedes Edie was awarded sole custody in the original paternity order. Accordingly, the factors specified in section 598.41(3) do no apply. The trial court properly considered the custody issue pursuant to section 600B.40. We agree with the trial court's conclusion that Calvin's belief that Tanner is involved in too many activities does not constitute a substantial change in circumstances warranting a modification of legal custody status. In fact the evidence militates against such a change: the parties do not communicate well, Calvin has had little or no involvement with Tanner's schooling, activities or religious training, he exercised little visitation in Tanner's early years, and only paid support after a judgment was entered against him. We affirm on this issue.
III. Child Support Calculation . Calvin contends the trial court should not have included his incentive pay in his gross income when calculating child support. He also maintains the trial court erred when it found Edie's tax filing status was married filing separately, instead of married filing jointly. He claims the taxes are higher for her filing separately and this decreases her income unrealistically for purposes of calculating her income.
We find these arguments lack merit. The trial court found Calvin's incentive pay should be included in his gross income. Calvin's own testimony reveals incentive pay was routinely received by employees at his workplace. The incentive pay was provided as part of the union contract and he admitted he received incentive pay with every paycheck. Calvin's incentive pay was properly included in computing his gross income. See State ex rel. Hammons v. Burge, 503 N.W.2d 413, 414 (Iowa 1993) (holding that incentive pay properly included in income for purposes of child support calculation). We affirm on this issue.
The trial court concluded it was appropriate to consider Edie's tax filing status as married filing separately. Determining net monthly income for child support purposes requires proper calculation of federal and state tax liabilities. Edie is currently married and has one child with her husband. The trial court concluded there was no difference in the result whether it used married filing separately or head of household status. Calvin essentially asks that Edie's husband's income be included in the support calculation by calculating her tax income under a married filing jointly status. There is no part of the child support computation that provides for inclusion of the income of spouses of custodial or noncustodial parents; remarriage is only a factor which may be considered in permitting the noncustodial parent to vary from the guidelines. See In re Marriage of Gehl, 486 N.W.2d 284, 287 (Iowa 1992). We find no merit in this argument. We affirm the trial court's modification of child support.
IV. Appellate Attorney Fees . Edie requests appellate attorney fees. An award of appellate attorney fees in a dissolution proceeding is discretionary. In re Marriage of Davis, 608 N.W.2d 766, 773 (Iowa 2000). 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 district court's decision on appeal. Id. Edie was obligated to defend the district court's decision. We award her $750 in attorney fees.
AFFIRMED.