In re the Marriage of Tigges

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Court of Appeals of IowaAug 13, 2003
No. 3-432 / 02-1489 (Iowa Ct. App. Aug. 13, 2003)

No. 3-432 / 02-1489

Filed August 13, 2003

Appeal from the Iowa District Court forWebster County, Ronald H. Schechtman, Judge.

Kent Tigges appeals from the trial court's modification decree reducing his child support obligation. Jane Tigges cross-appeals. AFFIRMED.

Blake Parker of Blake Parker Law Office, Fort Dodge, for appellant.

Jane Tigges, Earlham, appellee pro se.

Considered by Sackett, C.J., and Huitink and Vogel, JJ.

I. Background Facts and Proceedings.

Kent Tigges appeals from the trial court's ruling reducing his child support. Jane Tigges cross-appeals. We affirm.

Kent and Jane divorced in 1996. The decree dissolving their marriage required Kent to pay $2600 per month in child support for the parties' four children from March 1996 through February 2001, and $2000 per month from March 2001 through February 2008. At the time of the decree Kent earned approximately $100,000 annually as manager of the Bode Coop.

In 1997 Jane petitioned to modify Kent's child support obligation, citing an increase in Kent's disposable income. She later dismissed that petition and filed a petition to set aside the 1996 dissolution decree based on Kent's fraudulent concealment of assets he owned at the time the decree was entered. In 1998 the parties reached a settlement agreement in which Kent agreed to pay Jane $100,000 in alimony and Jane agreed to dismiss her petition to set aside the decree.

These proceedings originated with Kent's petition to modify his child support obligation. Kent cited the involuntary termination of his employment at the Bode Coop and resulting $60,000 reduction in his annual earnings as changed circumstances justifying the relief requested. Jane resisted Kent's request, claiming Kent had the requisite earning capacity and other resources from which he could pay his child support. She also claimed Kent's prior failure to accurately disclose his financial condition precluded modification of the decree.

After a hearing the court found Kent's reduced earnings justified a reduction of his child support obligation. The court, however, determined a literal application of the child support guidelines and resulting reduction of Kent's child support from $2000 per month to $549.31 was inequitable and ordered Kent to instead pay $1200 per month. The trial court's controlling findings of fact provide:

This Court concludes that a variation from the present guidelines is appropriate; that the present guidelines would be unjust or inappropriate. The Court further finds all of the criteria listed in In re Marriage of Maher 596 N.W.2d 561 (Iowa 1999) but does not determine that the past occurrences reflected by the non-divulgement of assets leads this Court to the conclusion that Kent cannot be rewarded for his conduct.

It appears that the amount of child support was a compromise of some sort, and was based as much upon what Kent had left over from his salary as any other equitable standard. It was a contract, but one that can be modified when substantial circumstances exist.

Kent's termination was not voluntary; there has been a substantial change in his financial circumstances, which would not have been within the contemplation of the dissolution court. It further appears that any continued enforcement of the original decree, as a result of the changed conditions, would not be totally justiciable, even under these unusual circumstances.

But it seems equally clear that the amount of decretal support did not reduce when one (or more than one) child became emancipated. It was not particularly adapted to the children's ages and stations in life, but was meant to be a sum that was commensurate with the needs of a financially stable family that existed before the dissolution. And Kent has been able to safely harbor the deferred compensation; no part of it has ever been part of any guideline.

In addition to reducing Kent's child support, the trial court also addressed related issues including postsecondary education subsidy, insurance, tax exemptions, attorney's fees, and issued a protective order prohibiting Jane from contacting Kent's current employer concerning financial matters.

On appeal Kent argues the trial court had no grounds for deviating from the child support guidelines and that his child support obligation should accordingly be set at $541.39 per month. On cross-appeal Jane contends that Kent's prior failure to accurately disclose his financial condition should preclude any reduction of his child support. She also requests that "there be a firm figure and time table such as August 20 and January 1 for [Kent] to help with his share of the college money."

II. Standard of Review.

Our review of this equity action is de novo. Iowa R.App.P. 6.4. We give weight to the trial court's findings of fact, especially when considering the credibility of the witnesses but are not bound by them. Iowa R.App.P. 6.14(6)( g). Although our review is de novo, we limit our consideration to those issues properly preserved for our review. In re Marriage of Jones, 653 N.W.2d 589, 592 (Iowa 2002).

III. The Merits.

We initially note Jane's failure to cite any legal authority supporting her arguments on cross appeal. We accordingly decline to consider the merits of the issues she raises. See Iowa R.App.P. 6.14(1)( c) (failure to state, to argue, or to cite authority deemed waiver of that issue). As a result there is no cognizable issue concerning the trial court's finding that Kent established the requisite change of circumstances or whether the trial court correctly applied the child support guidelines. The fighting issue is therefore whether the trial court abused its discretion by making an upward deviation from the child support guideline amount.

The trial court's determination that Kent's amount of child support under the guidelines should be $549.31 is presumptively correct. Iowa Ct. R. 9.4. Iowa Court Rule 9.9 provides:

The court shall not vary from the amount of child support which would result from application of the guidelines without a written finding that the guidelines would be unjust or inappropriate as determined under the following criteria:

(1) Substantial injustice would result to the payor, payee, or child.

(2) Adjustments are necessary to provide for the needs of the child and to do justice between the parties, payor, or payee under the special circumstances of the case . . . .

The trial court's decision to deviate from the guideline amount is discretionary. Id.; In re Marriage of Thede, 568 N.W.2d 59, 61 (Iowa Ct.App. 1997). In the absence of an abuse of that discretion, we will not interfere. See Thede, 568 N.W.2d at 62.

The record indicates that Kent invested $300,000 in Great Plains Protein, a start-up pet food business, shortly after leaving the Bode Coop. As a result, Kent owns twenty-five percent of that company and receives a $40,000 annual salary for managing its daily operations. Kent testified that Great Plains should become profitable in the next two years and he is entitled to a share of its profits in proportion to his ownership interests. Great Plains' financial statements indicate that it has an aggressive plan to retire its liabilities by minimizing cash distributions to investors and building its capital structure.

Although Kent has experienced a substantial decline in salary, his net worth is still $1.028 million. The record supports Jane's claims that Kent is a shrewd and sophisticated businessman who has deliberately structured his financial affairs to minimize his child support exposure. We agree with the trial court's implicit and express findings that Kent has the ability and access to resources allowing him to pay at least $1200 monthly child support. There is no inequity in ordering him to do so.

Lastly, we note that reducing Kent's child support to $549.17 per month would result in substantial inequities to Jane and the children. Like the trial judge, we believe the child support amounts originally set were intended to preserve the financial stability and lifestyle Jane and the children enjoyed prior to the dissolution. Jane currently earns $17,473 annually. Reducing Kent's child support to $549.17 per month would defeat the parties' shared intentions to preserve the children's financial security.

Based on our de novo review of the record, we are unable to find the trial judge abused his discretion by deviating from the child support guidelines. We therefore affirm the trial court's modification decree.