Opinion
No. 2-938 / 02-0934
Filed July 10, 2003
Appeal from the Iowa District Court for Marion County, Gregory A. Hulse, Judge.
Melissa Van Dusseldorp appeals from the district court's ruling granting Brian Vander Wal's application to reduce his child support obligation. AFFIRMED.
David Dixon of Heslinga, Heslinga, Dixon Moore, Oskaloosa, for appellant.
Wesley Chaplin of Kreykes Law Office, Pella, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Melissa Van Dusseldorp appeals from the district court's ruling granting Brian Vander Wal's application to reduce his child support obligation. She contends the trial court erred in finding a substantial and material change of circumstances had occurred sufficient to reduce his child support payment. Melissa also asks for trial and appellate attorney fees. We affirm.
Melissa and Brian are the parents of Kolbie, born October 30, 1997. Brian's paternity was formally established on April 30, 1999 and the parties were granted joint legal custody of Kolbie, with physical care placed with Melissa. At that time Brian was ordered to pay child support to Melissa in the amount of $300 per month based on the Iowa Child Support Guidelines and the parties' earnings.
In September of 2001 Brian enrolled in college full-time and subsequently filed this petition to modify his child support obligation. In his petition he alleged a substantial change in circumstances due to the fact he was not working during the first semester of college in order to concentrate on his studies and thus could not meet his $300 per month obligation.
The district court filed a ruling on April 23, 2002 finding that Brian was attempting to obtain his post-secondary education in the hope of advancing his career and increasing his earning capacity to provide more financial support for his child. It further found that Melissa needs child support from Brian at its current level and has difficulty meeting her and Kolbie's expenses. The court also concluded the evidence did not indicate any improper intent or reckless conduct by Brian, but, to the contrary, his alleged reduction of income was
temporary and for good reason. The court ultimately concluded that under the circumstances of the case it would have discretion to grant Brian's request, but due to Brian's failure to provide the court with any evidence of his financial circumstances at that time he had not met his burden to prove a substantial and material change in circumstances.
Brian filed a motion to reconsider with a financial affidavit and child support guidelines worksheet attached. In those documents he was willing to have full-time minimum wage income of $10,712 per year, $892.67 per month, attributed to him despite his lack of any substantial income. In his motion Brian stated that the matter had been discussed by counsel for the parties and there was no objection to the court's review of Brian's financial affidavit and child support guidelines worksheet which he had intended to make part of the record. Accordingly, the court reconsidered the petition to modify, taking into account Brian's financial information. In an order filed June 4, 2002 the court concluded that Brian had now proven a substantial and material change in circumstances which justified a reduction in his child support obligation to $147.98 per month. In setting support at this amount the trial court did attribute full-time minimum wage income to Brian.
Melissa appeals, contending the court erred in finding a material and substantial change in circumstances had occurred sufficient to reduce Brian's child support obligation. Specifically, she argues that Brian's actions in ending
his employment to attend college full-time, resulting in the lowering of his income, constitutes a reckless disregard of his obligation to support his son.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
A court may modify an order of child support when a "substantial change in circumstances" has been shown to exist. Iowa Code § 598.21(8) (2001); In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998). "Changes in the employment, earning capacity, income or resources of a party" is one of the factors which may be considered by the court. Iowa Code § 598.21(8)(a); Walters, 575 N.W.2d at 741. This is the factor relied upon by Brian in his request for reduction of his child support obligation. The party seeking the modification must prove the change in circumstances by a preponderance of the evidence. Walters, 575 N.W.2d at 741.
Nevertheless, a parent may not rely on a claim of decreased income to obtain a modification of a support order if the parent's reduced earning capacity and inability to pay support is self-inflicted or voluntary. Therefore, parents who reduce their income through an improper intent to deprive their children of support or in reckless disregard for their children's well-being are not entitled to a commensurate reduction in child support payments.
In re Marriage of Swan, 526 N.W.2d 320, 323-24 (Iowa 1995) (citations omitted).
Melissa concedes there is no showing that Brian had any improper motive to avoid supporting Kolbie. She contends only that his actions constitute a
reckless disregard for his child's well being. The trial court found no evidence of any reckless conduct by Brian, and that any reduction in his income was temporary and for good reason, namely to obtain more education in the hope of advancing his career and increasing his earning ability in order to be able to provide more financial support for Kolbie.
Two facts in particular convince us that, as found by the trial court, Brian did not reduce his income with a reckless disregard for Kolbie's well being. First, as stipulated by the parties and found by the trial court, Brian is securing additional education to advance his career, increase his earning ability, and pay higher support for the many remaining years of his support obligation. Second, as shown by Brian's financial affidavit and child support guidelines worksheet, he was willing to have full-time minimum wage income attributed to him despite the fact he has little or no income. These facts show that Brian has not only considered how he can better support Kolbie in the future but also considers and takes seriously his current support obligation.
Melissa earns almost $29,000 per year. Under the trial court's modification ruling Brian will pay support as if he were working full-time earning minimum wage income. Presumably he will pay at this somewhat lowered rate for only the limited period of time necessary to secure the additional education he seeks, after which he will have increased earning capacity and pay higher support for the many remaining years of his support obligation. While expressing no willingness or readiness to reduce a current child support obligation under circumstances less favorable to a support recipient and child than those that exist
in this case, upon our de novo review we conclude that the modification ordered by the trial court is justified and appropriate under the rare and particular facts of this case.
Melissa seeks as award of trial and appellate attorney fees. Although Melissa sought trial attorney fees in her answer to Brian's petition, the trial court did not address this issue either in its initial ruling or its reconsideration ruling. "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal. Meier, 641 N.W.2d at 537; Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995); State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350 N.W.2d 202, 206 (Iowa 1984). Here the court did not address or rule on the issue of attorney fees raised by Melissa and Melissa did not request a ruling on this unresolved issue by motion pursuant to Iowa Rule of Civil Procedure 1.904(2) or otherwise. Accordingly, we find Melissa has not preserved error on the issue of trial 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. Having considered the relevant factors we conclude each party should be responsible for their own appellate attorney fees.
We conclude the trial court was correct in finding Brian did not reduce his income in reckless disregard for his child's well being and affirm the modification order. Melissa has not preserved error regarding trial attorney fees, and we award no appellate attorney fees.
AFFIRMED.
(Sackett, C.J., dissents in part and concurs in part).
I concur in part and dissent in part. I would not modify child support. I admire Brian for attempting to get additional education. However, he has a child whose interests must supercede his. All the record shows about his plans is that he is beginning a course of study at DMACC in architecture. While it is conceivable that he may in the future be better able to support his child, I cannot determine from this record when this will happen, or that his income will increase so substantially in the future that it is in his child's interest he be allowed to decrease his child support obligation at this time. In all other respects I concur with the majority's opinion.