No. 4-153 / 03-1003Court of Appeals of Iowa.
Filed March 24, 2004
Appeal from the Iowa District Court for Greene County, Gary L. McMinimee, Judge.
Michael Harbaugh appeals the district court’s refusal to modify his child support obligation or to find Charlene Heater in contempt due to visitation problems. AFFIRMED.
Dorothy L. Dakin of Kruse Dakin Law Office, Boone, for appellant.
Mark J. Rasmussen of Rasmussen Law Office, Jefferson, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
MAHAN, J.
I. Background Facts Proceedings
A dissolution decree was entered for Michael Harbaugh and Charlene Harbaugh, now Charlene Heater, on October 19, 1999. The decree was based on the parties’ stipulation. Charlene was awarded primary physical care of the couple’s two children: Cassandra, born in December 1988, and Allison, born in December 1991. Michael was granted “reasonable rights of visitation,” and a visitation schedule was provided in the event the parties could not agree on visitation. Michael was ordered to pay child support of $875 per month.
At the time of the dissolution, Michael was employed by his father at Jack’s Auto Sales, a used car business. Michael was paid an annual wage of about $17,000. He also bought and sold used cars on his own, and had fluctuating income from this. Charlene was employed as a secretary at a law firm.
In July 2000 Michael filed an application for modification of his child support obligation. The district court determined Michael had failed to show a substantial change in circumstances. The court did amend the decree, based on the parties’ agreement, to make Michael responsible to provide health insurance for the children.
On March 15, 2002, Michael filed a new application to modify his child support obligation. Michael claimed there had been a substantial change in circumstances because his father retired at the end of 2002 and he was no longer guaranteed an annual wage. Michael was able to continue buying and selling cars, using his father’s business property.
The district court determined that to assess Michael’s child support responsibility, his average income in the years 2000, 2001, and 2002 should be considered, and this amount was $48,146. The court allowed a monthly deduction of $179.90 for Michael’s health insurance for himself and the two children. Charlene’s income for guidelines purposes was $27,040. In using these amounts, the court found Michael’s child support obligation would be $832.82. Because this amount did not deviate by more than ten percent from the amount Michael was currently paying, Michael’s application for modification was denied. The court awarded Charlene attorney fees of $1000. Michael’s motion to reconsider was denied.
While the modification action was pending, Michael also filed an application for rule to show cause, alleging that Charlene should be found to be in contempt because he had not had visitation with the children on some weekends in 2003. The evidence showed the parties did not communicate regarding visitation, and that the children, then ages fourteen and eleven, believed they could decide whether or not to go for visitation. The district court found Charlene was not in contempt. The court denied Michael’s motion to reconsider this matter as well.
Michael appeals, claiming (1) his child support should be decreased, (2) Charlene should be found in contempt, and (3) the court abused its discretion in awarding Charlene attorney fees.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)(g).
III. Child Support
A court may modify a party’s child support obligation where there has been a substantial change of circumstances. Iowa Code §598.21(8) (2001). Under section 598.21(9), “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. . . .”
Michael contends the district court should have considered his future income. He points out that he will no longer receive a wage from his father, and claims that his average income of $48,146 should be reduced by $17,409, the average amount he received from his father over the last three years. To ascertain a party’s income for the purpose of determining child support, we must determine the parent’s current monthly income from the most reliable evidence presented. In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). Michael’s future income is entirely speculative, and we concur in the district court’s decision to consider Michael’s child support obligation based on his income over the past three years.
Michael also contends the district court should have deducted the entire monthly amount he pays for health insurance, $345.30. Michael pays this amount for himself, his current wife, their child, and the two children involved in this case. The district court permitted a deduction of $179.90, which represented monthly health insurance for Michael and the parties’ two children.
The child support guidelines were amended, effective August 1, 2000, and provide that a deduction from gross income may be made for a “[h]ealth insurance premium either deducted from wages or paid by a parent for health insurance so long as the child is covered by the policy.” Thus, in order to determine what Michael’s child support obligation would be at the current time, the district court should have deducted the entire amount Michael pays for health insurance.
Even if we take the full amount Michael pays in health insurance into consideration, however, we determine his current child support obligation would not be more than ten percent different than the amount he presently pays. We conclude Michael has failed to show a substantial change in circumstances warranting a modification of his child support obligation.
IV. Contempt
Michael claims the district court should have found Charlene in contempt for failing to provide visitation as provided for in the dissolution decree. We do not review de novo a trial court’s refusal to hold a party in contempt in a dissolution proceeding In re Marriage of Hankenson, 503 N.W.2d 431, 433 (Iowa Ct.App. 1993). Rather, we review the record to determine whether substantial evidence supports the trial court’s ruling. In re Marriage of Eilers, 526 N.W.2d 566, 570 (Iowa Ct.App. 1994).
The district court noted that the parties did not communicate regarding visitation. Michael arranged for visitation directly with the children. The children testified that Charlene had encouraged them to attend visitation. The court found, “It is apparent from the evidence that both children believe that they can make decisions regarding visitation or at least negotiate whether or not they will go for visitation.” At the hearing, the court clearly informed the parties they were to no longer arrange for visitation through the children. The court told Charlene that she was to have the children ready for visitation at the appointed time.
We find substantial evidence supports the district court’s finding that Charlene had not willfully violated the court decree. Both parties had improperly allowed the children discretion as to whether or not they were going to attend visitation. This situation has been remedied through the court’s oral rulings at the hearing.
V. Attorney Fees
Michael asserts the district court abused its discretion by awarding Charlene $1000 for trial attorney fees. The district court has considerable discretion in awarding attorney fees. In re Marriage of Okonkwo, 525 N.W.2d 870, 873 (Iowa Ct.App. 1994). We find no abuse of discretion under the facts of this case.
We affirm the decision of the district court.
AFFIRMED.