No. 5-787 / 05-0507Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Hancock County, John S. Mackey, Judge.
James Pals appeals, and Bonnie Pals cross-appeals, from the district court order modifying the provisions of their dissolution decree. AFFIRMED IN PART AND REVERSED IN PART.
Gary L. Berkland of Houser Berkland, Belmond, for appellant.
Christopher C. Foy of Leslie, Collins Foy, Waverly, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
EISENHAUER, J.
James Pals appeals, and Bonnie Pals cross-appeals, from the district court order modifying the provisions of their dissolution decree. James contends the district court erred in concluding there was not a substantial change in circumstances warranting modification of his child support obligation. He further contends the court erred in failing to determine if a postsecondary education subsidy should be allowed, and the amount each parent is required to contribute. On cross-appeal, Bonnie contends the court erred in crediting to James overpayment of his support obligation. She also contends the Qualified Domestic Relations Order (QDRO) entered by the court did not accurately reflect the division of the pension benefits made in the original decree. We affirm in part and reverse in part.
I. Background Facts and Proceedings.
James and Bonnie were married on August 14, 1982. The couple has two children; Nicole, born in 1979, and Joel, born in 1985. Bonnie filed for a petition for dissolution on September 18, 1989. Following trial in February 1991, Bonnie was granted physical care of both children.
The decree ordered James to pay $679 per month in child support until Nicole married, died, or reached the age of eighteen, whichever should occur first. At that time, the child support obligation would be reduced to $495 per month, terminating when Joel married, died, or reached the age of eighteen. Concerning Joel, the decree further states:
In the event that the second child of the parties shall continue with any post-secondary education, the required level of support shall continue at the rate of $495 per month until such time as the second child of the parties either completes the secondary-education or attains the age of 22, whichever shall occur first, pursuant to § 598.1(2), The Code.
In dividing the property, the decree awarded Bonnie one-half of the increased value of James’s Iowa Public Employment Retirement System (IPERS) fund. It states:
At such time as the respondent receives benefits from the Iowa Public Employment Retirement Systems, he shall pay to the petitioner 50 percent of that fraction of the benefits, where the numerator is 7 and the denominator is the number of years in which the respondent contributed to the IPERS fund.
Nicole married in October 2000, thus reducing James’s child support obligation from $679 per month to $495 per month. However, James continued to make child support payments of $679 per month until May 2004. When asked why he continued to pay $679 when he was entitled to reduce the payment to $495 he replied, “I wanted my son to continue to have the same standard of living he had had before”. That same month, Joel, who turned eighteen years old in August 2003, graduated from high school. Joel began attending Northern Iowa Area Community College in August 2004. In 2004, James paid Joel an additional $4,390 in voluntary support.
In May 2004, James retired after forty years of teaching in the West Hancock Community School District. He began receiving IPERS benefits June 1, 2004. He is director of religious education at St. Patrick’s Catholic High School, earning $14,000 per year. Both parties’ net incomes have increased since the dissolution.
On May 21, 2004, James filed a petition for modification of the decree of dissolution. He asked the court to issue a QDRO as described in the original decree. He further asked the court to terminate his payment of child support and to instead order an allocation of the required contribution of each party toward Joel’s post-secondary education. He also asked to be awarded his attorney fees, and for costs of the case to be assessed to Bonnie. In her answer, Bonnie asked the court to “clarify and interpret” the portion of the decree regarding the division of James’s IPERS benefits and to issue a QDRO allocating the IPERS benefits “based on the actual length of the marriage of the parties as of February 14, 1991.” The district court’ summary of what the parties asked for is as follows:
James vehemently opposes paying Bonnie any amount of continued child support as he believes that same to be tantamount to alimony. Bonnie believes she should be awarded a larger portion of James’s IPERS benefits than provided to her by the decretal court. She also believes James should not be given a credit for the overpayment which she accepted and utilized for Joel’s benefit. James believes that he had established a substantial change in circumstances which were not in contemplation of the decretal court which would warrant modifying the post-secondary child support provisions.
In its ruling on the petition to modify, the court found James had failed to demonstrate a substantial change in circumstances warranting modification. The court found James was entitled to a $7,912 credit for his child support overpayment. The court applied it to the $4,455 James owed Bonnie at the time the order was entered and found James had a net credit of $3,457 yet to be applied to Joel’s ongoing post-secondary support. The court also concluded the decree properly calculated the percentage of James’s IPERS benefits to which Bonnie was entitled, and found any alteration would constitute an impermissible modification of the property division. Finally, the court denied James’s request for attorney fees.
II. Scope of Review.
Our scope of review of a child support modification action is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740-41
(Iowa 1998). We give weight to the trial court’s factual findings, especially when considering the credibility of witnesses, but we are not bound by them. In re Marriage of Bolick, 539 N.W.2d 357, 359 (Iowa 1995). Although our review is de novo, we accord the trial court considerable latitude in making this determination and disturb the ruling only when there has been a failure to do equity. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998).
III. Termination of Child Support.
We first consider James’s contention the district court erred in denying his request to terminate his child support obligation and to instead order post-secondary education expenses.
A. Substantial Change in Circumstances.
In denying James’s request to modify the child support provisions of the decree, the district court concluded James failed to show a substantial change of circumstances not in the court’s contemplation at the time of the decree. We agree. In regard to the existence of a substantial change in circumstances, James cites to the fact that his income has increased, requiring a total increase of child support in the amount of $148, or a variance of 29.9%from the original amount ordered. Iowa Code section 598.21(5A) (2003) provides a substantial change of circumstances exists where an order for child support varies by ten percent or more from the amount that would have been due pursuant to the most current child support obligations. However, where a parent’s income increases, a ten percent variance would likewise require an increase in child support. See, e.g., In re Marriage of Raue, 552 N.W.2d 904, 906 (Iowa Ct.App. 1996). Here, James seeks to use the income variation to terminate child support.
James also points to several other changes since the entry of the decree: Joel reaching the age of majority, graduating from high school, living independently, attending college, etc. However, none of these changes justify modification. To justify modification, the change in circumstances must not have been within the trial court’s contemplation at the time of the original decree. In re Marriage of Walters, 575 N.W.2d 739, 741
(Iowa 1998). The events cited by James were clearly in the contemplation of the court at the time the original decree was entered.
We affirm the district court’s conclusion that James failed to prove a substantial change in circumstances warranting elimination of his previously ordered child support obligation.
b. Post-Secondary Education Expenses.
We also affirm the portion of the district court’s ruling concluding Iowa Code section 598.21(5A) (providing for a subsidy for post-secondary education expenses) does not apply here. As the district court noted, the date of the dissolution decree predates section 598.21(5A)’s enactment. Because the original decree determined the parental contributions to Joel’s college expenses, section 598.21(5A) does not apply. See In re Marriage of Rosenfield, 668 N.W.2d 840, 847 (Iowa 2003).
IV. Child Support Credit.
On cross-appeal, Bonnie contends the court erred in crediting to James the extra support payments made after Nicole was married. She argues voluntary overpayment of child support is not entitled to credit. She cites to In re Marriage of McCurnin, 681 N.W.2d 322 (Iowa 2004), in support of her argument.
In McCurnin, the district court denied a request for child support credit based on three reasons. McCurnin, 681 N.W.2d at 328.
First, he made no request for such a credit in his pleadings, his proposed findings to the district court, or in his post-trial motion to enlarge, amend, and reconsider pursuant to Iowa Rule of Civil Procedure 1.904(2). Second, the alleged overpayment is based strictly on David’s testimony with no supporting documentation, which casts considerable doubt as to the magnitude of his claim. Last, we consider him a volunteer to the extent that he made any overpayments and therefore not entitled to any credit.
Id. We note that the first two reasons cited by the court are not applicable here. James’s request for credit was properly presented to and decided by the district court. Furthermore, his payments were made to and recorded by the clerk of court’s office. However, James acknowledges the payments were voluntary so his son could maintain the same standard of living. Therefore, James is not entitled to credit for the voluntary overpayments. We reverse the portion of the district court’s ruling finding James is entitled to a $7,912 credit for child support overpayment.
V. Division of IPERS Benefits.
Finally, Bonnie contends the court erred in interpreting the portion of the decree regarding the division of James’s IPERS benefits. She argues the decree states she should received half of the increase of the IPERS fund during the duration of the marriage up to the entry of the January 1991 dissolution decree (eight and one-half years) instead of the duration of the marriage up to the point of separation (seven years).
Paragraph eleven of the dissolution decree clearly states that “the numerator is 7 and the denominator is the number of years the respondent contributed to the IPERS fund.” Therefore, the district court correctly calculated the QDRO based upon the seven years noted in the decree. Although Bonnie now argues the numerator should be eight and one-half, this argument should have been brought before the district court at the time of the entry of the decree by way of a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). To change the decree now would be an impermissible modification of the property division, as noted by the district court. In re Marriage of Knott, 331 N.W.2d 135, 137 (Iowa 1983) (holding inequitable property division in a dissolution decree should be corrected by an appeal and thereafter property rights ought to be accorded some permanency).
Accordingly, we affirm the district court’s QDRO division of James’s IPERS benefits.
VI. Conclusion.
We reverse the portion of the district court’s order granting James credit for his child support overpayment. We affirm the order in all other respects. Costs of the appeal are taxed equally to both parties.
AFFIRMED IN PART AND REVERSED IN PART.