In re Marriage of McCurnin
| Decision Date | 12 May 2004 |
| Docket Number | No. 02-0772.,02-0772. |
| Citation | 681 N.W.2d 322 |
| Parties | In re the MARRIAGE OF Jennifer K. McCURNIN and David S. McCurnin Upon the Petition of Jennifer K. McCurnin, Appellee, And Concerning David S. McCurnin, Appellant. |
| Court | Iowa Supreme Court |
John R. Hearn, Des Moines, for appellant.
Patricia A. Shoff and Diane M. Stahle of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellee.
This is a proceeding to enforce a dissolution decree as to child support and to modify the decree to extend alimony. David S. McCurnin, against whom the application was filed, appealed from a district court judgment. He claimed the district court erroneously (1) found he was in arrears in child support, (2) computed his future child support, (3) extended alimony beyond a date set in the decree, and (4) awarded Jennifer K. McCurnin, who filed the application, attorney fees. David also challenged an interim child support award the district court entered following the appeal. Finally, David sought a credit against future child support for alleged overpayments of such support.
We transferred the case to the court of appeals, which affirmed on all the issues save the interim child support award, an issue it did not address. We granted David's application for further review.
On our de novo review, we find the district court and the court of appeals erroneously determined that David was in arrears in his child support and erroneously determined his future child support obligation. We also find that the district court and the court of appeals correctly determined that the decree should be modified by extending alimony beyond the date set in the decree and in awarding Jennifer attorney fees. However, we conclude the alimony contingency should be modified. Although the court of appeals did not address Jennifer's request for appellate attorney fees, we conclude she is entitled to them. Finally, we reject David's challenge to the district court's interim support order and his request that he be awarded a credit for any alleged overpayments of child support.
Accordingly, we affirm in part as modified and vacate in part the court of appeals decision; we affirm in part as modified and reverse in part the district court judgment; and we remand the case with directions.
On September 20, 1991, the district court entered a decree dissolving the parties' twenty-year marriage. Five children were born of the marriage: Justin, born July 9, 1972; Misha, born April 5, 1976; Travis, born October 11, 1978; Caressa, born May 11, 1984; and Spencer, born April 23, 1987. The decree awarded the parties joint care, custody, and control of the minor children with Jennifer as the primary custodian subject to reasonable visitation in favor of David, so as not to interfere with the health, education, and welfare of the minor children.
Additionally, the decree ordered David to apply the appropriate Child Support Guideline percentage to any employee bonus income and pay that amount to Jennifer:
Additional child support, in an amount equal to the current Child Support Guideline percentage, shall be paid by [David] within 14 days from the receipt by [David] of any bonus income from his employer. Presently, such guidelines require payment of 51.5 percent of net monthly income.
The decree also imposed year-end income reporting obligations, as follows:
In addition to the periodic alimony, David was ordered to pay Jennifer a lump sum alimony payment of $4000 within ten days after entry of the decree.
The decree awarded Jennifer the marital homestead, investments in her name, two vehicles, and fifty percent of David's 401(k) plan. The decree also awarded Jennifer all of the household furniture, furnishings, and appliances in the homestead together with furs, jewelry, personal checking and savings accounts, and all other personal effects in her possession.
The decree awarded David the parties' summer cottage property in Minnesota together with the household goods, furniture, and furnishings in the cottage. The decree also awarded David his boat, car telephone, personal checking and savings accounts, and all other personal effects in his possession. In addition, the decree awarded David all of his right, title, claim, and interest in the Nellie McCurnin Trust. The decree ordered David to pay 100 percent of the children's tuition expenses at Dowling High School and 100 percent of the children's college expenses until each child reached age twenty-two. He was also ordered to maintain medical, hospital, and dental insurance for the minor children and to maintain a life insurance policy in effect with the children as beneficiaries in an amount not less than $100,000 for so long as his child support obligation remains.
Since the decree, David has remarried and resides in West Des Moines. In connection with David's purchase of his new residence, Jennifer executed a receipt and satisfaction acknowledging payment of all sums due to her through June 8, 1994.
Following entry of the decree, David paid off Jennifer's share of his 401(k) plan in the amount of $13,570.19, which Jennifer used to pay off the mortgage on the residence awarded to her.
Since the entry of the decree, three of the parties' minor children have attained the age of majority, completed the pursuit of their college education, and are now employed. The two youngest children, Caressa and Spencer, live with Jennifer. Caressa is a senior at Dowling High School, and Spencer is in the eighth grade at St. Augustin School.
Jennifer and David are in good health. At the time of the hearing on the matter now before us, Jennifer was working part-time. David has continued in the same employment that he had at the time of the dissolution.
On October 18, 2000, Jennifer filed an application for modification of and application to enforce the decree of dissolution. In her application, Jennifer sought to extend the alimony beyond the date of the decree. As to the application to enforce the decree, Jennifer sought payment of child support from David's bonus income, claiming she had "not been paid any additional child support from [David's] bonus income." She also asked that David pay her attorney fees and costs of the action.
On November 9, 2000, David answered the application and asserted a number of affirmative defenses. On April 16, 2001, David filed his own application to modify the decree, seeking to eliminate the prospect of future alimony payments, modify child support, and modify the parties' obligations for the children's college expenses. He also asked that the court order Jennifer to pay his attorney fees, expenses, and costs. Jennifer filed an answer, denying the material allegations and seeking to have the court order David to pay her attorney fees, expenses, and costs.
On September 18, 2001, the district court heard the matter and later filed its ruling. The court rejected David's argument that only his earned income should be used to calculate child support, found that Jennifer agreed that payments were made directly to her, and found that David owed Jennifer $29,649 in back child support. The court also found that Jennifer had established a need for further alimony and awarded her alimony of $1500 per month starting November 1, 2001, "which shall terminate at her age 62, remarriage, or death whichever last occurs unless upon application by Jennifer at that time she can establish that she is in need of and entitled to alimony beyond that date."
Based on the alimony award of $1500 per month, the court ordered David to pay $1465 per month in child support, "pursuant to the same terms and conditions of the...
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...amounts due under the decree. Harner v. Harner, 105 Ill.App.3d 430, 434 N.E.2d 465, 468, 61 Ill.Dec. 312 (1982); In re Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004) (holding obligor was not entitled to credit for overpayment of support because he was a volunteer); Webb v. Webb, 475 ......