Opinion
No. 4-881 / 04-1048
Filed February 9, 2005
Appeal from the Iowa District Court for Warren County, Peter A. Keller, Judge.
Richard Parrish appeals the district court's order modifying a child support provision of a divorce decree and refusing to modify the alimony provisions. AFFIRMED.
Joseph Nugent, West Des Moines, for appellant.
Robert Benton of Stuyvesant Benton, Carlisle, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Richard Parrish (Rick) applied to modify the alimony provision of a dissolution decree. Yvonne Parrish counterclaimed for a modification of the child support provision. The district court declined to modify alimony but increased child support. Richard appealed. He contends the district court should have terminated alimony and should not have increased child support as much as it did. Our review of these issues is de novo. Iowa R. App. P. 6.4.
I. Alimony
Rick and Yvonne married in 1991 and divorced in 2000. They had one daughter. At the time of the dissolution, both parties were approximately thirty years old and both earned wages. Rick's actual gross annual income was approximately double Yvonne's. He earned $39,312 relative to Yvonne's earnings of $19,884. At trial, evidence was presented that Yvonne only worked thirty-two hours per week. In its decree, the district court found Yvonne could earn more if she worked forty hours per week. The court imputed gross annual income to her of $23,856. Based on this figure and Rick's income of $39,312, the court ordered Rick to pay Yvonne $500 per month in spousal support beginning November 1, 2000 and ending October 31, 2005. The parties agree this award should be characterized as rehabilitative alimony. See In re Marriage of Wessels, 542 N.W.2d 486, 489 (Iowa 1995) (stating rehabilitative alimony provides support for an "economically dependant spouse through a limited period of re-education or retraining following a dissolution, thereby creating opportunity and incentive for that spouse to become self-supporting").
In 2004, Rick applied to modify the decree, contending Yvonne's income had increased. Yvonne did not dispute that, at the time of the modification hearing, she was earning $25,792, as compared to $19,884 in actual earnings and $23,856 in imputed earnings four years earlier. The district court declined to eliminate alimony on the basis of this increase.
With alimony, her gross annual income was $31,792.
Rick contends this ruling was inequitable. He points to (1) Yvonne's increased earnings, (2) Yvonne's ability to earn even more by working forty rather than thirty-two hours per week, (3) Yvonne's ability to meet her expenses and enjoy a comfortable lifestyle on her own earnings, and (4) his increased expenses at the time of the modification hearing.
It is axiomatic that a court may modify alimony provisions "only when there has been a material and substantial change in the circumstances of the parties making it equitable that different terms be fixed." In re Marriage of Sjulin, 431 N.W.2d 773, 776 (Iowa 1988). The change must not have been contemplated by the court issuing the original decree. In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977). Notably, "[e]ven if a substantial change is shown, [the court] will not modify the terms of the decree unless its enforcement will be attended by a positive wrong or injustice as a result of changed conditions." Sjulin, 431 N.W.2d at 776. The original decree is entered "with a view to reasonable and ordinary changes that may be likely to occur." Wessels, 542 N.W.2d at 490.
We conclude Yvonne's increased earnings do not satisfy these standards. Yvonne's annual income at the time of the modification hearing was $1,927 more than the amount assumed by the dissolution court. The purpose of rehabilitative alimony is to increase earnings. See Wessels, 542 N.W.2d at 490 ("Without doubt the rehabilitative alimony was provided . . . in the belief that, through additional education, training, and work experience Yvonne would be able to obtain a full-time job and become self-supporting."). Yvonne used the alimony to move toward this goal, taking college courses that she had been unable to pursue during the marriage. As a result, she was able to obtain a social work position conditioned on obtaining a four-year degree in the near term. Yvonne testified she would achieve this goal in the summer or fall of 2005. She expressed a desire to further advance her career by obtaining a master's degree in hospital administration. In short, Yvonne used the alimony precisely for its intended purpose. Her increased earnings were a contemplated result of the increased education that the alimony funded. Therefore, the earnings cannot serve as a basis for modification.
We also can easily dispose of Rick's contention that the court should consider Yvonne's ability to work more than thirty-two hours per week. This fact was considered and accounted for by the dissolution court and, again, cannot serve as a basis for modification. Even if we were to consider this factor, Yvonne testified that her present job did not allow for a forty-hour work week. She also noted she had not worked forty hours per week "for years."
We turn to Yvonne's lifestyle. Yvonne's expenses at the time of the dissolution trial were $2,595 per month. At the time of the modification hearing, her monthly expenses had decreased to $2,436. Her expense itemization suggests Yvonne was no longer financially strapped and could afford to spend more on entertainment and extracurricular activities for her daughter. However, the itemization does not account for her student loans which exceeded $17,000 and on which she had yet to begin making payments. Even if Rick is correct that Yvonne's lifestyle improved after the marriage, we view this development as a "reasonable and ordinary change" rather than "the sort of rare and unique change that demands the extraordinary relief" requested by Rick. Wessels, 542 N.W.2d at 490.
Finally, we consider Rick's financial situation. By the time of the modification hearing, he had a new household that included a wife, two step-children, and an infant son. His income had increased by $5,688 from the time of the dissolution decree. While his expenses also increased, the record suggests these expenses were shared with his new wife. Without minimizingthe financial burden of maintaining his new household, we conclude Rick's circumstances were not so dire as to render enforcement of the alimony obligation a "positive wrong or injustice." Sjulin, 431 N.W.2d at 776.
Rick confirmed this in his motion to reconsider the district court's modification ruling.
The district court acted equitably in declining to modify Rick's alimony obligation.
II. Child Support
The dissolution court awarded Yvonne physical care of the parties' daughter. Rick was ordered to pay $430 per month in child support based upon Yvonne's assumed gross income of $29,856 annually and Rick's assumed gross income of $33,312 annually. That amount was to increase to $506 per month upon the termination of Rick's alimony obligation.
Yvonne's income figure included $6,000 in alimony. That amount was deducted from Rick's income.
The modification court found, "the amount of child support ordered in the Decree varies by more than ten percent (10%) from the amount which would be due pursuant to the Child Support Guidelines submitted by the parties in this matter." See Iowa Code § 598.21(9) (2003). The court further found Rick's net monthly income was $2,443 and Yvonne's was $2,157. Based on these findings, the court modified the child support award from $430 per month to $485 per month "until the minor child reaches the age of eighteen (18) and graduates from high school, or marries, dies or becomes self-supporting."
The original decree provided that the support would increase from $430 to $506 per month when alimony payments ended. The modification decree effectively reduces the $506 figure to $485 based on the parties' revised income figures. Neither party takes issue with this aspect of the modification decree.
On appeal, Rick concedes his support obligation should increase, but contends the district court "committed a reversible error when it failed to include the allowable deduction for a qualified dependent on the child support calculations." See Child Support Guidelines Rule 9.7. He contends the correct amount of child support is $477 rather than $485 per month.
These guidelines were amended in 2005. If we needed to apply the guidelines, we would apply those in effect at the time of appeal. In re Marriage of Roberts, 545 N.W.2d 340, 343 n. 2 (Iowa Ct.App. 1996).
The district court's net monthly income figures for both parties as well as its final child support figure deviate slightly from the numbers contained in the parties' worksheets. We conclude this minor deviation reflects an exercise of independent knowledge and judgment rather than a failure to do equity. Accordingly, we decline to adjust the district court's calculation. See Wessels, 542 N.W.2d at 490, In re Marriage of Thede, 568 N.W.2d 59, 62 (Iowa Ct.App. 1997).
III. Appellate Attorney Fees
Yvonne requests appellate attorney fees. Awards are discretionary and determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999).
Rick is not in a sufficiently better financial position than Yvonne to pay these fees. Further, the grounds for this appeal were not frivolous. Therefore, we deny Yvonne's request to have Rick pay all or a portion of her appellate attorney fees.