Marriage of Bolick, In re
| Citation | 539 N.W.2d 357 |
| Decision Date | 25 October 1995 |
| Docket Number | No. 94-1284,94-1284 |
| Parties | In re the MARRIAGE OF Marietta Walker BOLICK and William Campbell Bolick. Upon the Petition of Marietta Walker Bolick, Appellee, and Concerning William Campbell Bolick, Appellant. |
| Court | United States State Supreme Court of Iowa |
Nathan A. Callahan of Dunakey, Klatt & Callahan, P.C., Waterloo, for appellant.
Jay A. Nardini of Ball, Kirk, Holm & Nardini, P.C., Waterloo, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, NEUMAN, ANDREASEN, and TERNUS, JJ.
This appeal concerns a trial court order increasing the child support payable by appellant William Bolick from $1200 to $2000 per month. Bolick argues the trial court erred in finding a substantial change of circumstances justifying an increase under Iowa Code section 598.21(9) (1993). Bolick further argues that the trial court erred in denying his posttrial request for discovery. Marietta Poe, formerly Marietta Bolick, cross-appeals. She claims the trial court should have made the increase retroactive to May 1993, and also that Bolick should be required to pay her attorney fees. We affirm as modified on the appeal, and reverse in part and affirm in part on the cross-appeal.
William and Marietta Bolick's marriage was dissolved in December 1987. They are the parents of three children--Allison, Elizabeth, and William--who were ages ten, seven, and four, respectively, at the time of the divorce. The children were placed in the joint custody of their parents; Poe has primary physical care. Pursuant to a stipulation incorporated into the decree, Bolick was ordered to pay $400 per month per child in support until the children were either emancipated or no longer qualified for support. Bolick also agreed to pay $1300 per month in alimony until Poe either died or remarried.
Bolick is a dentist in Waterloo. His yearly gross income during the years since the decree ranged from approximately $89,500 to $115,000. The trial court found that his current net monthly income is $6081.50. Poe's net monthly income from part-time employment is $686. These figures do not represent a significant change from the parties' earnings at the time of the decree.
Bolick has remarried and his second wife earns a yearly salary of approximately $22,000. Poe has also remarried. Her husband earns approximately $94,000. He pays a significantly larger amount in child support and alimony to his first wife than does Bolick. Upon Poe's remarriage, Bolick discontinued paying her alimony.
In May 1993, Poe petitioned for modification of the child support award pursuant to Iowa Code sections 598.21(8) and (9). She claimed that Bolick's child support obligation deviates by more than ten percent from the amount then authorized under the child support guidelines. This deviation, she argued, created a substantial change in circumstances warranting a modification. The trial court agreed and increased Bolick's child support payments from $1200 to $2000 per month.
Bolick appeals, claiming the trial court erred in (1) finding that a substantial change in circumstances under Iowa Code section 598.21(9) exists to warrant a modification, and (2) denying Bolick's posttrial motion for discovery to challenge assertions made by Poe at trial. On cross-appeal, Poe claims the trial court erred by (1) not making the increase in child support retroactive to May 10, 1993, the date on which the notice of the modification petition was served, and (2) not awarding Poe her reasonable attorney fees.
This modification action was tried in equity. Therefore, our review is de novo. Iowa R.App.P. 4. We give weight to the trial court's factual findings but are not bound by them. In re Marriage of Guyer, 522 N.W.2d 818, 820 (Iowa 1994).
I. Iowa Code section 598.21(8) states that child support orders may be modified where there has been a "substantial change in circumstances." Section 598.21(9) provides that a substantial change in circumstances exists when the court-ordered child support award deviates by ten percent or more from the amount that would be due pursuant to the most current child support guidelines. The controversy before us centers on the correlation of these two statutes.
As already noted, the trial court calculated Bolick's net monthly income at the time of the petition at $6081.50. The child support guidelines then in effect provided that when the noncustodial parent's net monthly income is $3001 or more, the amount awarded in child support rests within the sound discretion of the trial court. See Iowa Child Support Guidelines (December 31, 1990). In no event, however, may the award be less than the guidelines amount for a noncustodial parent with a monthly net income of $3000. Under this rule, Bolick's minimum support obligation would be $1152. Because he pays a greater sum--$1200 per month--Bolick argues his current obligation does not deviate by ten percent or more from the amount which he would owe pursuant to the child support guidelines.
Poe counters that within the discretionary range of the guidelines, a petition brought pursuant to section 598.21(9) requires the court to determine anew the amount it would order for child support and then compare that figure to the support actually being paid. If the amount varies by ten percent or more, she argues, a substantial change has occurred. This was the procedure followed by the trial court here.
We believe that the trial court misapplied section 598.21(9) based on the record before it. Within the discretionary range of the guidelines, the modification authorized here amounts to no more than a substitution of one judge's discretionary call for another's. Principles of res judicata prevent such relitigation of issues once decided. Guyer, 522 N.W.2d at 821. Thus we hold that within the discretionary range of the child support guidelines, a court may not revisit the wisdom of an earlier award based solely on an alleged ten percent deviation from what could be due if a new calculation were performed.
On our de novo review, however, we are obliged to apply the most current guidelines. State ex rel. Epps by Epps v. Epps, 473 N.W.2d 56, 57 (Iowa 1991). The current guidelines raised the figure at which the amount payable becomes discretionary from $3001 to $6000. Iowa Child Support Guidelines (July 1, 1995). Within this nondiscretionary range, Bolick's current obligation would be $2000 per month. This figure varies by more than ten percent from the amount payable by Bolick under the decree. Thus this record would support a finding of substantial change in circumstances under Iowa Code section 598.21(9) from and after July 1, 1995.
II. Bolick argues alternatively that a finding of substantial change in circumstances will not warrant a modification here because the trial court could have contemplated such a change in the parties' circumstances when the original decree was entered. See In re Marriage of Feustel, 467 N.W.2d 261, 263 (Iowa 1991) (). Bolick asserts that Poe's primary basis for seeking an increase--that the expense of raising their now teen-aged children has increased dramatically since the original order--was within the contemplation of the trial court at the time of the dissolution decree. Therefore, Bolick argues, the modification is unwarranted. We disagree.
In both initial support orders, as well as modifications, the trial court has wide discretion to determine the appropriate amount payable by the noncustodial parent. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). Courts may consider several factors in making this judgment, including the parties' economic circumstances and ability to pay support, In re Marriage of Fleener, 247 N.W.2d 219, 221 (Iowa 1976); the needs of growing children, In re Marriage of Stutsman, 311 N.W.2d 73, 76 (Iowa 1981); and the effect of...
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