McDonald v. McDonald, 54252

• Decision Date: 19 January 1971
• Docket Number: No. 54252,54252
• Parties: Dorothy J. McDONALD, Appellant, v. Wilfred E. McDONALD, Appellee.
• Court: Iowa Supreme Court

Page 186

183 N.W.2d 186

Dorothy J. McDONALD, Appellant, v. Wilfred E. McDONALD, Appellee.

No. 54252.

Supreme Court of Iowa.

Jan. 19, 1971.

Simon W. Rasche, Jr., Clinton, for appellant.

David O. Shaff, Clinton, for appellee.

LARSON, Justice.

Pursuant to an application by defendant husband for modification of a divorce decree fixing child support, the trial court on October 10, 1969, entered a decree which provided that defendant was to receive credit upon his support obligation under a previous decree to the extent of fifty per cent of the plaintiff's take-home pay, which was determined to be $48.00 weekly. Plaintiff appeals, and we further modify the child support provisions of the decree.

From the record it appears the plaintiff, Dorothy McDonald, obtained a decree of divorce from the defendant, Wilfred McDonald, on December 9, 1966. The decree awarded plaintiff the custody of the minor children, Kay Lynn, aged 12 years, Mary Jo, aged 10 years, and Timothy Wilfred, aged 7 years, provided visitation rights, and directed that defendant pay to plaintiff for the support of the children the sum of $28.00 per week per child until each one reaches the age of 18 years, becomes married, or finishes high school. It also provided property distribution between the parties and took note of plaintiff's unemployment potential.

On May 10, 1967, a hearing was had on defendant's application for modification of support provisions due to an alleged change of circumstances, which resulted in a modification decree of June 5, 1967. From this modification, based upon a material reduction of defendant's earnings, no appeal was taken. In this decree the court ordered the defendant, commencing with the first day of June, 1967, to pay monthly as child support, in lieu of the sums allowed in the original decree, one half of defendant's pay after deductions for withholding income taxes, both federal and state, and social security taxes, and provided for the reduction of these payments by 25 per cent when each child arrives at the termination period of support set forth in the original decree. It specifically provided that if defendant obtains other net income, as defined by the Internal Revenue Act on Form 1040 or Schedule C, one half of this amount, less income or other taxes due thereon, shall also be paid to plaintiff as child support. In its ruling the court took notice of the fact that 'Plaintiff does not work, but has sought employment at least once when Defendant was delinquent in his payments', and stated, 'Evidently she has high blood pressure, but also feels that her place is in the home with the children.'

On July 17, 1969, defendant again filed an application for modification based upon a further change of circumstances. Among other things, he alleged that at the time of the June 5, 1967, modification his earnings were $9,000 per year, that presently they are $9,600 per year, that he suffers a financial detriment due to other aspects of his employment, and that 'other income' provisions of that decree should therefore be eliminated. These aspects he listed as loss of mileage expenses, a deletion of his life insurance benefits, which were a part of his employment compensation, loss of travel and luncheon expenses, and a change of the employment contract now permitting outside employment which will be subject to the fifty per cent support payment without considering the additional expense incurred in earning those sums. He further alleged his financial condition has caused him to sell personal property and incur bills which are in the amount of $750 excluding overdue attorneys fees.

However, the principal basis for this modification appears to be predicated upon plaintiff's outside employment which had been secured subsequent to the 1967 modification. This change of circumstances, he maintained, was substantial and enhanced her ability to aid in the support of the children and which he anticipated amounted to more than $300 per month. Plaintiff's answer admitted her employment and she testified that due to increasing expenses to provide for the children and herself she was forced to supplement defendant's support payments. She denied it was a sufficient change of circumstances not within the knowledge or contemplation of the court when the 1967 modification was granted.

In its opinion filed October 3, 1969, the trial court reviewed the prior proceedings in this matter and found no merit in defendant's application except as to the allegation that plaintiff was gainfully employed. It held such employment and income was not contemplated in the prior decrees, which were predicated upon the idea that she would not be able to contribute any financial support for the family. It found her take-home pay from employment was between $47.00 and $49.00 per week, but did not feel the formula worked out for defendant's support payments should be disturbed. It decided defendant should have credit upon his payments for fifty per cent of her net weekly income of approximately $48.00, or $24.00. The modification decree filed October 10, 1969, so provided. Defendant did not appeal from this decision.

In her statement of propositions relied upon for reversal plaintiff contends: (1) No material change of circumstances which would not have been contemplated by the former decrees was established. (2) The fact that plaintiff secured part-time employment to supplement the growing insufficiencies of the support payments is not a material change of circumstances which justifies modification. (3) The decree as modified is not capable of definition and is fatally vague and indefinite. (4) The court's order granting defendant a setoff of fifty per cent of the plaintiff's earnings as a part-time employee is unjust, excessive, and without foundation in the record.

I....