Marriage of Phillips, In re

• Decision Date: 27 October 1992
• Docket Number: No. 92-60,92-60
• Citation: 493 N.W.2d 872
• Parties: In re the MARRIAGE OF Mary Kathryn PHILLIPS and Alan Dale Phillips. Upon the Petition of Mary Kathryn Phillips Hart, Petitioner-Appellant, And Concerning Alan Dale Phillips, Petitioner-Appellee.
• Court: Iowa Court of Appeals

Page 872

493 N.W.2d 872

In re the MARRIAGE OF Mary Kathryn PHILLIPS and Alan Dale Phillips Upon the Petition of Mary Kathryn Phillips Hart, Petitioner-Appellant And Concerning Alan Dale Phillips, Petitioner-Appellee.

No. 92-60.

Court of Appeals of Iowa.

Oct. 27, 1992.

Bonnie J. Campbell, Atty. Gen., John M. Parmeter, Sp. Asst. Atty. Gen., Kevin E. Kaufman, County Atty., and E. Dean Metz, Asst. Atty. Gen., for petitioner-appellant.

Susan M. Dulek, Legal Services Corp. of Iowa, Iowa City, for petitioner-appellee.

Heard by HAYDEN, P.J., HABHAB, J., and McCARTNEY, Senior Judge. ^*

HAYDEN, Presiding Judge.

This appeal arises from an order modifying the child support obligation of Alan Phillips. The trial court found Alan's incarceration constituted a substantial change in circumstances justifying the modification. We disagree and reverse the trial court decision. We hold the child support obligor's incarceration for third-degree sexual abuse of his stepdaughter does not constitute a change of circumstances justifying a modification. However, we hold Mary's increased income constitutes a substantial change which justifies modification of Alan's support obligation.

The marriage of Alan and Mary Phillips was dissolved on February 13, 1991. Mary was given physical custody of the parties' two minor children. Pursuant to the dissolution decree, Alan was ordered to pay $130.77 per week as child support for his two sons.

The record reveals Mary was receiving Aid to Families with Dependent Children (AFDC) benefits prior to trial until October 1, 1991. At the time of trial Alan was employed by Burlington Northern Railroad and was earning a net monthly income of $1578.50.

On February 27, 1989, Alan was convicted of sexual abuse in the third degree involving his stepdaughter. Alan was sentenced to an indeterminate term not to exceed five years. Alan filed a request to delay issuing of mittimus until August 19, 1990, in order that he could become vested in his railroad pension. The trial court granted Alan's request to delay mittimus.

The incomes of both parents have changed since the issuance of their dissolution decree. Alan's income while incarcerated is approximately $36 per month. Since the dissolution Mary has obtained a full-time job. Her net monthly income is $1139.

Based upon his incarceration, Alan filed an application to modify his child support obligation. Alan alleged his incarceration constituted a substantial change in circumstances. On December 19, 1991, the trial court found Alan's incarceration constituted a significant change in circumstances justifying modification and suspended his child support obligation until sixty days after his release from prison.

Because Mary received AFDC, her right to child support up to the amount of benefits expended was assigned to the State of Iowa. Due to the assignment, the State is the party appealing the trial court decision.

I. Our review of an order on application to modify child support provisions is de novo. In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983) (citing Mears v. Mears, 213 N.W.2d 511, 515-16 (Iowa 1973); Iowa R.App.P. 4). The trial court, however, has reasonable discretion in determining whether modification is warranted. Id. A petition to modify must be decided on the facts of each case. The trial court's discretion will not be disturbed on appeal in the absence of a failure to do equity. Id. (citing Norenberg v. Norenberg, 168 N.W.2d 794, 797 (Iowa 1969)).

II. Modification of child support provisions of a dissolution decree is justified only if there has been a substantial change in circumstances since the entry of the original dissolution decree. In re Marriage of Habben, 260 N.W.2d 401, 403 (Iowa 1977) (citations omitted); Iowa Code § 598.21 (1991). The party seeking the modification has the burden to show such a change has occurred. In re Marriage of Bergfeld, 465 N.W.2d 865, 869 (Iowa 1991) (citing Ellis v. Ellis, 262 N.W.2d 265, 267 (Iowa 1978)). Of course not every change of circumstances is sufficient to justify modification of child support provisions. Sandler v. Sandler, 165 N.W.2d 799, 800 (Iowa 1969). "A decree is not to be modified unless its enforcement will be attended by positive wrong or injustice as a result of changed circumstances." Ellis, 262 N.W.2d at 267.

On appeal, Alan contends the changed circumstances justifying modification are (1) his incarceration and (2) Mary's increased income. First we focus on whether Alan's incarceration constitutes a changed circumstance which justifies modification of his support obligation.

III. Other jurisdictions are divided on the issue of whether incarceration of an obligor justifies the reduction of a child support obligation. Under the broadest summary, courts have decided this issue based on whether the obligor possessed assets against which the obligation could be charged and/or the voluntary nature of the obligor's criminal activity.

A. Jurisdictions Granting Modification:

State courts have granted modification to incarcerated obligors on different grounds. The majority of these courts based their decisions to modify on the fact the incarcerated obligor lacked other possessions against which the support obligation could be charged. See Clemans v. Collins, 679 P.2d 1041 (Alaska 1984) (court remanded for determination of whether incarcerated obligor possessed other assets to meet obligation); Pierce v. Pierce, 162 Mich.App. 367, 412 N.W.2d 291 (1987) (court granted modification because obligor lacked other assets); Foster v. Foster, 99 A.D.2d 284, 471 N.Y.S.2d 867 (1984) (court granted modification even though obligor had equity in marital home).

The following cases illustrate situations in which courts granted modification based on the fact other assets did not exist. In Foster v. Foster the New York Supreme Court, Appellate Division, addressed the issue of whether to modify an incarcerated parent's support obligation. Foster, 99 A.D.2d at 284, 471 N.Y.S.2d at 867. The obligor had been convicted of first-degree manslaughter. Id. at 284-85, 471 N.Y.S.2d at 868. At the time of modification, the obligor had equity in a marital home which was being used by his former wife. Id. at 286, 471 N.Y.S.2d at 869. The court noted the wife was not planning to sell the home in the future so reliance upon his equity interest was "an inappropriate and unsatisfactory way to provide for the support of a child which obviously requires current cash." Id. (citations omitted). The court quoted with approval Edmonds v. Edmonds, a case in which the Oregon Court of Appeals granted modification:

"[w]here a noncustodial parent is imprisoned for a crime other than nonsupport (or for civil contempt for failure to pay the same) ... the better rule should be that the parent is not liable for such payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments."

Id. at 285, 471 N.Y.S.2d at 869 (quoting Edmonds v. Edmonds, 53 Or.App. 539, 633 P.2d 4, 5 (1981), overruled by In re Marriage of Willis, 109 Or.App. 584, 820 P.2d 858 (1991)). The court in Foster concluded evidence showed the obligor possessed no assets against which the obligation could be charged. Id. at 285-86, 471 N.Y.S.2d at 869. The court suspended the support obligation of the incarcerated parent until his release from prison. Id. at 286, 471 N.Y.S.2d at 870. We recognize Foster remains the law in New York; however, Edmonds was overruled in 1991 by In re Marriage of Willis. Willis, 820 P.2d 858 (court denied modification even though obligor possessed no other assets; denial also based upon view criminal conduct cannot excuse obligation).

Some courts have granted modification because they viewed incarceration as an involuntary loss of employment which justifies modification. See People ex rel. Meyer v. Nein, 209 Ill.App.3d 1087, 154 Ill.Dec. 436, 568 N.E.2d 436 (1991) (court granted modification; rejected argument incarceration was a voluntary loss of employment); Johnson v. O'Neill, 461 N.W.2d 507 (Minn.Ct.App.1990) (court granted modification because incarceration was not self-limitation of income); Leasure v. Leasure, 378 Pa.Super. 613, 549 A.2d 225 (1988) (court granted modification because obligor lacked assets; rejected voluntary decrease in income argument). In People ex rel. Meyer v. Nein the obligor was incarcerated upon a negotiated plea to a felony drug charge. People ex rel. Meyer v. Nein, 209 Ill.App.3d 1087, 154 Ill.Dec. 436, 568 N.E.2d 436, 438 (1991). The Illinois Court of Appeals granted modification and suspended the incarcerated parent's obligation while he was in prison. Id. The court rejected the argument the incarcerated parent voluntarily reduced his income. Id. 154 Ill.Dec. at 437, 568 N.E.2d at 437. The court viewed incarceration as an in voluntary loss of employment and therefore concluded the obligor should not be barred from modification. Id. However, the court noted "incarceration, as a foreseeable result of criminal activity, does not ipso facto relieve one of the obligation to pay child support." Id. 154 Ill.Dec. at 438, 568 N.E.2d at 438. In Johnson v. O'Neill the Minnesota Court of Appeals granted modification because it found the obligor's incarceration was not intended for the purpose of limiting income. Johnson, 461 N.W.2d at 507-08. The court remanded for a computation of an obligation based on the obligor's actual income while incarcerated. Id. at 508.

B. Jurisdictions Denying Modification:

Other jurisdictions have denied modification to incarcerated obligors. Denial of modification has also been based on different grounds. Some state courts have denied modification because the obligor possessed other assets against which the support obligation could be charged. See Division of Child Support Enforcement ex rel. Harper v. Barrows, 570 A.2d 1180 (Del.Supr.1990) (court denied modification because incarcerated obligor possessed...