In re Marriage of Maher

• Decision Date: 08 July 1999
• Docket Number: No. 97-1707.,97-1707.
• Citation: 596 N.W.2d 561
• Parties: In re the MARRIAGE OF Mary R. MAHER and James W. Maher Upon the Petition of Mary R. Maher n/k/a Mary R. Beaves, Appellee, And Concerning James W. Maher, Appellant.
• Court: Iowa Supreme Court

596 N.W.2d 561

In re the MARRIAGE OF Mary R. MAHER and James W. Maher

Upon the Petition of Mary R. Maher n/k/a Mary R. Beaves, Appellee,

And Concerning James W. Maher, Appellant.

No. 97-1707.

Supreme Court of Iowa.

July 8, 1999.

As Amended on Denial of Rehearing July 30, 1999.

Daniel L. Bray and Chad A. Kepros of Bray & Klockau, P.L.C., Iowa City, for appellant.

Steven E. Ballard of Leff, Haupert, Traw & Willman, L.L.P., Iowa City, for appellee.

Considered en banc.

LAVORATO, Justice.

James W. Maher appeals from a district court ruling that denied his application for child support modification and denied his request to reduce his obligation to provide post-high school education expenses for his three children. His former wife, Mary R. Beaves, cross-appeals from that portion of the ruling that (1) refused to enforce a cost-of-living (COLA) provision, and (2) modified the decree by requiring her to contribute one-half toward transportation expenses associated with James visitation with the children. She also contends the district court should have awarded her trial attorney fees and requests we award her appellate attorney fees. We affirm on the appeal and affirm in part and reverse in part on the cross-appeal.

I. Background Facts and Proceedings.

James and Mary were married in June 1980. They have three children: Thomas, age 15; Robert, age 12; and Kathleen, age 8. All three children are in good health.

On June 9, 1993, the district court dissolved the marriage and entered a decree that incorporated a stipulation of the parties. The stipulation granted the parties joint custody and granted Mary physical care of the children. Under the stipulation, James received reasonable and liberal visitation privileges, including every Friday from 5:30 p.m. until Monday morning and mid-week overnight visitation.

The stipulation also provided that James pay (1) child support of $4500 per month, (2) alimony of $1000 per month, (3) car insurance expenses for the children, and (4) the costs of Kathleen's wedding. The stipulation contained a COLA provision that required James to pay increased child support by a percentage equal to a rise in the national consumer price index. The stipulation also required James to maintain a life insurance policy on his life for $1,215,000 with the children as beneficiaries to secure his child support obligation.

Additionally, the stipulation required James to "pay the costs of application fees, testing expenses or fees, interviewing fees, trips, and related transportation and lodging and food costs for said children when applying to colleges and universities, up to a maximum of $2000 per child." The stipulation also required James to "pay for room, board, tuition, books and supplies for the children for a four-year post-high school education . . . limited to in-state student costs at the University of Iowa."

At the time of the dissolution, James was forty-five and Mary was thirty-nine. James was then and is presently a board-certified general surgeon and professor of surgery at the University of Iowa. His yearly gross income from the time of the decree ranged from $178,000 to $204,271. The district court found that his current net monthly income is $10,161. At the time of the dissolution, Mary was not working. At present, she is a registered nurse, working part-time. The district court found that she has a net monthly income of $1827.

About six weeks after the district court entered the dissolution decree, Mary moved to Pennsylvania. Thereafter, on September 20, 1993, the parties agreed to a modification of the decree on visitation. As part of the agreement, James agreed to pay all the transportation costs associated with his visitation rights.

In January 1994 James filed an application to terminate his alimony obligation. Under the stipulation, alimony would terminate in the event Mary cohabited with an adult. In March the parties reached an agreement terminating the alimony. The agreement also required Mary to pay back to James $2500 of the $6000 in alimony James had paid during the period of her cohabitation with an adult male, Steve Sweeney. Mary had intended to marry Sweeney but later decided not to.

Shortly after the divorce, James married Carol Staheli. Carol has been diagnosed with a stage 2 cancer. Carol works part-time as a nurse, earning $20,000 per year. In October 1994 Mary married Robert Beaves, an attorney who heads the department of finance and legal studies at Robert Morris College. Robert has a net monthly income of $4704.

On June 20, 1997, James filed the present modification application. He asked the court to (1) reduce his child support obligation; (2) delete the COLA provision; (3) reduce his obligation to provide life insurance; and (4) reduce his obligation to pay for post-high school expenses, transportation expenses associated with child visitation, and uninsured medical expenses for the children.

The court refused to modify James' obligation to pay (1) child support, (2) post-high school education expenses, and (3) uninsured medical expenses for the children. The court, however, did modify James' obligation to pay transportation expenses associated with his visitation rights. It did so by ordering Mary to pay for the transportation costs of sending the children back to Pennsylvania following James' visitation with them. The court also reduced James' obligation to maintain life insurance on his life from $1,215,000 to $355,000. The court found the COLA provision vague and therefore unenforceable and refused to allow either party attorney fees.

As we consider the issues the parties have raised, we discuss additional facts relevant to those issues.

II. Scope of Review.

Because this is an equity action, our review is de novo. Iowa R.App. P. 4. In our review, we examine the entire record and adjudicate anew the rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). Although we give weight to the district court's factual findings, we are not bound by them. Iowa R.App. P. 14(f)(7).

A party seeking modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in the circumstances of the parties since the entry of the decree or of any subsequent intervening proceeding that considered the situation of the parties upon application for the same relief. Mears v. Mears, 213 N.W.2d 511, 514 (Iowa 1973). Other well-established principles govern modification: (1) not every change in circumstances is sufficient; (2) it must appear that the continued enforcement of the decree would, as a result of the changed circumstances, result in positive wrong or injustice; (3) the change in circumstances must be permanent or continuous rather than temporary; and (4) the change in circumstances must not have been within the contemplation of the district court when the original decree was entered. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). The district court has reasonable discretion in determining whether modification is warranted, and we will not disturb that discretion unless there is a failure to do equity. Id.

III. Issues on Appeal.

A. Child support. Before the adoption of our child support guidelines, a court was required to consider certain statutory factors when fixing child support. See Iowa Code §§ 598.21(4), 598.21(8) (1987). With the adoption of guidelines, a court is no longer required to consider these statutory factors. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). A court, however, may consider the statutory factors when "the guidelines require judicial discretion or if the guidelines award would be unjustified or inappropriate." Id.

The latest child support guidelines provide that, when the noncustodial parents net monthly income is $6001 or more, the amount awarded in child support rests within the sound discretion of the district court. See Iowa Child Support Guidelines (July 1, 1995). In no event, however, may the award be less than the guidelines amount for a noncustodial parent with a net monthly income of $6000. See id. Therefore, James' $10,161 net monthly income places him within the discretionary range of the guidelines. Mary's net monthly income is $1827. Therefore, under the child support guidelines, James' minimum obligation for support is $1872 ($6000 × 31.2%). James is willing to pay thirty-one percent of his net monthly income or $3150 per month. He now pays $4500 per month.

Because James is in the discretionary range of the guidelines, the statutory factors in Iowa Code sections 598.21(4) and 598.21(8) may be considered. Section 598.21(8) lists the following factors pertinent here that may be considered in determining whether there has been a substantial change in circumstances warranting a modification of a child support order: (1) changes in the employment, earning capacity, income or resources of a party; (2) changes in the residence of a party; (3) remarriage of a party; (4) possible support of a party by another person; and (5) other factors the court determines to be relevant in an individual case.

James relies on a number of factors he claims constitute a substantial change in circumstances since the entry of the decree justifying modification of the child support order. Most of them center on Mary's move to Pennsylvania and the improvement in her financial condition because of her remarriage and her new employment. We agree that these facts do constitute a substantial change in circumstances. Nevertheless, we conclude for reasons that follow that such changes do not warrant modification of the support order. See Iowa Code § 598.21(8) ("[T]he court may subsequently modify orders made under this section when there is a substantial change in circumstances.") (emphasis added).

Statutory factors we deem relevant, which support our conclusion that modification is not warranted include...