No. 5-601 / 04-1180Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Linn County, Amanda Potterfield, Judge.
Both parties disagree with a district court order modifying Kevin Kerker’s child support obligation. AFFIRMED ON APPEAL;AFFIRMED ON CROSS-APPEAL.
Richard A. Zimmerman of Arenson Zimmerman, P.L.C., Cedar Rapids, for appellant/cross-appellee.
Thomas J. Miller, Attorney General, Diane Stahle, Special Assistant Attorney General, Michael J. Parker, Assistant Attorney General, Harold Denton, County Attorney, and Corenne Liabo, Assistant County Attorney, for the State of Iowa.
Christine R. Klein, Ely, appellee/cross-appellant pro se.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
EISENHAUER, J.
Kevin Kerker appeals from an order raising his child support obligation. Christine Klein cross-appeals, arguing Mr. Kerker’s support obligation was not raised enough. After our de novo review of this equity case, see Iowa R. App. P. 6.4, we affirm the district court on the appeal and on the cross-appeal.
I. Background
The parties were divorced in April 1998 and are parents of two minor children. The children were six and three years old when their parents divorced. They were twelve and nine when this matter was submitted to the trial court in June 2004. Ms. Klein has remarried and has two children with her second husband. In their stipulation, approved by the court and made part of the original decree dissolving the marriage, the parties agreed Mr. Kerker would pay $421.88 per month in child support. The stipulation also provided:
Furthermore, Respondent agrees that she will not petition the court to increase the above child support in exchange for Respondent being able to claim both children as dependents on her tax returns for as long as she is eligible to claim the children as dependents.
Mr. Kerker maintains health coverage through his employment for the two children, who are also covered under health insurance available through Ms. Klein’s husband’s employer. Mr. Kerker was ordered to pay all uncovered medical expenses.
Ms. Klein asked the Child Support Recovery Unit (“CSRU”) to review and adjust Mr. Kerker’s support obligation under Iowa Code chapter 252H (2003). CSRU notified the parties it would raise Mr. Kerker’s monthly child support obligation to $710.00. He requested a hearing in district court, and raised the “no modifications” clause in the parties’ stipulation. The matter was heard in the spring of 2004.
At the time of the hearing, Ms. Klein was not working and was a college student, and had not worked since 2001. In its calculations submitted at trial, CSRU used $694.14 for Ms. Klein’s income, which is the average monthly income for the last two calendar quarters she worked. Noting she had been “historically — underemployed,” the district court imputed an annual income of $11,500 to Ms. Klein, concluding that to use Ms. Klein’s actual income would result in substantial injustice. This income, which is roughly the average of Ms. Klein’s two highest years in her earnings history, is, as noted by the district court, “part-time work.”
Using this imputed income for Ms. Klein and Mr. Kerker’s actual income, and allocating one dependency exemption to each parent, the court modified Mr. Kerker’s monthly child support obligation to $624.00. Ms. Klein filed a post-trial motion, which the district court overruled in all respects relevant to the present appeal. Mr. Kerker appealed and Ms. Klein cross-appealed.
II. Issues on Mr. Kerker’s Appeal
Mr. Kerker first asserts, in light of Ms. Klein’s stipulation not to seek an increase in child support, the district court should not have increased his child support obligation. We disagree.
Like the district court, we conclude enforcing the agreement not to modify would be against the interests of the children to be supported. The district court found “the children need and deserve guideline support and will be disadvantaged without it.” To the extent that the agreement not to modify is injurious to the best interests of the children at issue, it is not enforceable. See, e.g., In re Marriage of Zeliadt, 390 N.W.2d 117, 119-20 (Iowa 1986); Anthony v. Anthony, 204 N.W.2d 829, 833-34 (Iowa 1973).[1]
Mr. Kerker notes the children’s needs are being met by Ms. Klein and her husband. He notes she testified about dressing the children in designer clothes, and he testified that she reminds him that the children enjoy a higher standard of living with her than with him. Even if true, we do not see how this information would alter our conclusion that enforcement of the “no modifications” stipulation would be against the interests of the children at issue. Under the facts of this case, we conclude the children’s best interests require the modification Ms. Klein sought. The children are growing, and one has significant needs due to a disability, and the additional monthly support would benefit them.
Next, citing Ellis v. Ellis, 262 N.W.2d 265 (Iowa 1978), Mr. Kerker argues Ms. Klein should not be able to leave the workforce and use this as the basis to modify his child support obligation. On our de novo review of the record, we cannot conclude that the substantial change in circumstances justifying a modification of Mr. Kerker’s child support obligation is attributable to Ms. Klein’s voluntary departure from the job market. Rather, we conclude the change in circumstances, even after considering the income the district court imputed to Ms. Klein, is primarily attributable to the two qualified additional dependant deductions Ms. Klein received on account of her two children with her current husband.
We affirm on Mr. Kerker’s appeal.
III. Issues on Ms. Klein’s Cross-Appeal
Ms. Klein first takes issue with the amount of income imputed to her by the district court. She argues the amount “is not supported by [her] work history, current circumstances, and skills.” We disagree. After reviewing the record and considering Ms. Klein’s work history and present circumstances, including her status as a college student, we conclude the district court’s amount of imputed income was appropriate. It represents “part-time work,” as noted by the district court, and Ms. Klein may be expected to earn this amount. We also conclude the district court properly imputed income to Ms. Klein, and concur in its assessment that using Ms. Klein’s actual income would result in a “substantial injustice.” In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.App. 1992).
Ms. Klein next complains that the district court found she was receiving monthly “government benefits” of $694.14. She notes this is the amount of income imputed to her by the district court, based on most recent earnings. We note that she is correct; however, this erroneous finding of fact does not influence our view of the district court’s judgment. After our de novo review of the record, we conclude the district court considered only the income it imputed to Ms. Klein; it did not consider the funds it mistakenly labeled as “government benefits” as income to Ms. Klein when it modified Mr. Kerker’s child support obligation.
Ms. Klein next argues the district court erred when it deviated from the monthly amount established by the child support obligations, which she indicates is $711.00. We disagree with her characterization of the district court’s decree. While variance from an obligation mandated by the child support guidelines is only allowable in certain limited circumstances, see Iowa Ct. R. 9.11, we conclude no “variance” occurred here. Rather, the district court ordered guidelines-level support after properly imputing income to Ms. Klein.
Finally, Ms. Klein asks this court to modify the district court’s decree to provide Kevin is only able to claim the dependency exemption awarded to him when he is current with his child support obligation. While we note this is common practice, we conclude equity does not require the modification Ms. Klein seeks.
Ms. Klein seeks an award of appellate attorney fees. As she has appeared pro se in this matter, her request is denied.
We affirm on Ms. Klein’s cross-appeal.
IV. Conclusion
We affirm on Mr. Kerker’s appeal and Ms. Klein’s cross-appeal. Pursuant an order from the supreme court, dated July 5, 2005, all costs in this action are taxed to Mr. Kerker.
AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.