DODRILL v. FOTH, 699 N.W.2d 685 (Iowa App. 2005)

BOBBIE JO DODRILL, Petitioner-Appellee, v. RANDY RICHARD FOTH, Respondent-Appellant.

No. 5-297 / 04-1708Court of Appeals of Iowa.
Filed May 11, 2005

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Iowa District Court for HumboldtCounty, Kurt L. Wilke, Judge.

Randy Foth appeals from a district court ruling which denied his application to modify his child support obligation.AFFIRMED.

Timothy Branschweig, Algona, for appellant.

Dan McGrevey, Fort Dodge, for appellee.

Considered by Huitink, P.J., and Mahan and Zimmer, JJ.

ZIMMER, J.

Respondent Randy Foth appeals from a district court ruling that denied his application to decrease his child support obligation and awarded Bobbie Jo Dodrill trial attorney fees. We affirm the district court.

I. Background Facts Proceedings
Randy and Bobbie Jo are the unmarried parents of a son, Garrett, born in 2001. Randy was adjudicated as Garrett’s father in April 2002. At that time, Randy agreed to pay child support of $325 per month to Bobbie Jo and the district court entered an order fixing child support in that amount.[1]

In October 2003, Randy filed an application to modify his child support obligation. He claimed his support obligation should be reduced because of a reduction in his income and an increase in Bobbie Jo’s income. Randy also claimed modification was warranted pursuant to the provisions of Iowa Code section 598.21(9) (2003). Following a contested hearing, the district court entered an order on September 30, 2004, which denied Randy’s application and awarded Bobbie Jo trial attorney fees. This appeal followed.

II. Scope of Review
Our review of a child support modification action is de novo In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We give weight to the fact-findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)(g).

III. Discussion
A party seeking modification of a child support order must establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the decree, and that the change was not within the contemplation of the district court when the prior decree was entered. Walters, 575 N.W.2d at 741.

The record reveals Randy owns a business known as Barney’s Tavern. He also does construction and snow removal on the side. At trial, Randy alleged that his child support should be reduced to the sum of fifty dollars per month. In rejecting Randy’s argument, the trial court noted that Randy reported a negative adjusted gross income of $6,931 in 2002, the year he voluntarily agreed to begin paying Bobbie Jo $325 per month in child support; and that he reported a positive adjusted gross income of $5,849 in 2003, which was the year he filed his application to modify. The court pointed out that Randy’s income had increased rather than decreased as alleged in his application to modify. The court concluded Randy had failed to prove a substantial change in circumstances which warranted a reduction in his child support obligation.

It is fair to say that the district court was more than a little skeptical regarding the accuracy of the information Randy supplied concerning his business and financial circumstances. The record reveals that Randy’s testimony often was evasive and incomplete. The trial court did not find Randy’s testimony to be credible, and upon our de novo review of the record, we find no reason to disagree with the court’s assessments of Randy’s credibility.

On appeal, Randy argues his support should be reduced by virtue of Iowa Code section 598.21(9) which states in pertinent part, “[A] substantial change of circumstances exists when the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines. . . .” For the reasons which follow, we do not find his argument persuasive under the circumstances of this case.

Randy concedes that he approved an order in 2002 which required him to pay child support for his son in the amount of $325 per month despite reporting a loss on his tavern business in that calendar year. The court file also reveals the district court entered a Stipulated Decree in January of 2003, which Randy “approved as to form and content.” The Stipulated Decree addressed a variety of issues regarding Garrett, but made no change in Randy’s level of child support.

Despite his prior agreements, Randy contends his support should be reduced to fifty dollars per month because it varies by ten percent or more from the amount which would be due under the current guidelines. Randy now claims he “signed off” on the $325 per month child support figure because he was told to do so by his attorney at the time. He testified he did not have any choice in the matter. In response, Bobbie Jo argues that Randy approved a level of child support in 2002 which deviated from the child support guidelines because he was well aware that his actual income was significantly greater than he reported on his tax returns.

Simply put, we do not believe the legislature intended to allow Randy to negotiate a level of child support which deviates substantially from the child support guidelines, and then later rely on that deviation in an attempt to modify the level of child support which was negotiated.[2]

For the reasons set forth above, we conclude that a mechanical application of the child support guidelines in this case would be unjust and contrary to Garrett’s best interests. Accordingly, we concur in the district court’s conclusion that Randy’s child support obligation should remain unchanged.[3]

IV. Attorney Fees.
The district court ordered Randy to pay Bobbie Jo $2,000 in trial attorney fees. Randy contends no fees should have been awarded. Trial courts have considerable discretion in awarding attorney fees. In re Marriage of Geil, 509 N.W.2d 738, 743
(Iowa 1993). To overturn the award, Randy must establish that the court abused its discretion. Id. We find no abuse of discretion in the district court’s decision to award trial attorney fees.

Bobbie Jo also requests that she be awarded appellate attorney fees. Such awards are discretionary and determined by assessing the needs of the requesting party, the opposing party’s ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon consideration of those factors, we award Bobbie Jo appellate attorney fees of $500 in this matter. Costs of this appeal shall be assessed to Randy.

AFFIRMED.

[1] Both Randy and Bobby Jo were represented by counsel when their agreement regarding the level of child support was negotiated.

[2] We are mindful that our supreme court concluded the mandatory language of section 598.21(9) required its application in a case where the parties had stipulated to split physical care of their children, and mutually agreed to forego child support See In re Marriage of Wilson, 572 N.W.2d 155, 156-57 (Iowa 1997). We find Wilson to be distinguishable from the case at hand. Wilson turned on the presumption that, at the time of the initial decree, no child support had been ordered because the parents’ obligations had been set-off, one against the other Id. at 157. Thus, when the child in the father’s care was no longer eligible for support, the mother no longer had an obligation under the guidelines, and the father’s remaining obligation deviated more than ten percent from the initial net award of zero. Id. In other words, an actual change occurred between the time of the stipulated decree and the modification petition that resulted in the deviation of at least ten percent, and thus supported the modification sought by the petitioning party. Here, Randy failed to establish a change that would support a decrease in his child support obligation.

[3] Randy has several complaints on appeal regarding discovery issues. We have considered his arguments and conclude that they provide no basis for reversal or modification of the district court’s ruling.