No. 6-124 / 05-0111Court of Appeals of Iowa.
Filed March 29, 2006
Appeal from the Iowa District Court for Linn County, David M. Remley, Judge.
Kirk Rockne Shearer appeals from the trial court’s modification decree denying his request to terminate his alimony obligation.AFFIRMED.
Kirk Shearer, Elkader, pro se.
Chad Newhouse of Luneckas Newhouse, P.C., Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
HUITINK, P.J.
I. Background Facts and Proceedings.
The parties’ marriage was dissolved in January 1997. Under the terms of the decree dissolving their marriage, Kirk was required to pay Susan $1200 monthly alimony.
At the time of the decree, Kirk worked for Svedla Industries. His annual salary was $73,466. Susan worked part-time, earning $3,133 per year. In August 1998, Susan secured full-time employment with the Cedar Rapids school district. In 2003 she earned $16,586.
In 2001 Metso Mineral Industries purchased Svedla Industries. As a result, Kirk was terminated and required to reapply for employment with Metso. Although Kirk was hired by Metso, he was given a different job description, and his salary was reduced to $62,000. In July 2002 Kirk resigned, citing ongoing conflicts with management concerning sales strategies and productivity. After leaving Metso, Kirk worked part-time at Cabela’s, Inc. From October 2002 through December 2002 Kirk earned $2,828. In late 2002 and early 2003 Kirk actively sought employment but filed no job applications after the spring of 2003. Kirk’s 2003 income included $885 from Cabela’s, $10,512 unemployment compensation, and a $43,296 net withdrawal from his 401(k) plan.
In November 2003 Kirk filed an application to modify the parties’ decree, citing his reduced earnings as a substantial change in circumstances justifying the requested modification. The trial court’s resulting modification decree, entered on December 20, 2004, provides:
Since Kirk voluntarily quit his employment at Metso, his voluntary quit does not constitute a material and substantial change of circumstances for purposes of modification of the Decree.
Since the Decree, Susan’s earned income has increased from $3,133 per year to $16,586 in 2003. She is working full-time during the school year, which was not within the contemplation of the court at the time the Decree was entered. Therefore, I conclude that Kirk has proven by a preponderance of the evidence that there has been a material and substantial change of circumstances with respect to Susan’s income. Therefore, it is equitable that alimony be modified.
. . . .
Since Susan is earning $16,586, she continues to need alimony to meet her basic necessities. I conclude that Kirk’s obligation to pay alimony to Susan should be reduced from $1,200 per month to $700 per month commencing January 1, 2005.
The trial court additionally modified the decree by reducing the amount of Kirk’s life insurance payable to his children from $90,000 to $45,000. The remainder of Kirk’s requested relief was denied.
On appeal, Kirk claims the trial court erred in requiring him to pay spousal support and concluding he voluntarily quit his job at Metso. Kirk further argues that the trial court did not provide him with due process because the trial court did not hear the case until fifteen months after Kirk filed his request for relief.
II. Standard of Review.
“Review in equity cases shall be de novo.” Iowa R. App. P. 6.4 see In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.App. 1997). Although we are not bound by the district court’s findings, we give them deference because the district court evaluated the parties with a firsthand view of their demeanors Id. “Prior cases have little precedential value; we must base our decision primarily on the particular circumstances in this case.” Id.; In re the Marriage of Weidner, 338 N.W.2d 351, 356
(Iowa 1983).
III. Modification.
Modification of the alimony provisions of a dissolution decree is justified only if there has been some material and substantial change in the circumstances of the parties, financially or otherwise, making it equitable that other terms be imposed Thayer v. Thayer, 286 N.W.2d 222, 223 (Iowa Ct.App. 1979). Kirk has the burden to establish such a change of circumstances by a preponderance of the evidence. Mears v. Mears, 213 N.W.2d 511, 513 (Iowa 1973); Thayer, 286 N.W.2d at 223. To justify modification, the change in circumstances must be those that were not within contemplation of the trial court when the original decree was entered. In re Marriage of Full, 255 N.W.2d 153, 159
(Iowa 1977). These changes must be more or less permanent or continuous, not temporary. In re Marriage of Carlson, 338 N.W.2d 136, 141 (Iowa 1983). The knowledge of the trial court at the time of the award is the basis for determining whether there has been a change of circumstances. Full, 255 N.W.2d at 159 Leo v. Leo, 213 N.W.2d 495, 496 (Iowa 1973). The original decree is entered with a view that reasonable and ordinary changes may be likely to occur in the relations of the parties Mears, 213 N.W.2d at 514. The Iowa Supreme Court has held that:
A primary factor to be considered in determining whether support obligations should be modified is whether the obligor’s reduction in income and earning capacity is the result of activity, which, although voluntary, was done with an improper intent to deprive his or her dependents of support. This is because we have held that an obligor’s voluntary reduction in income or earning capacity may be a basis for refusing to modify support obligations.
In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998) (citations omitted).
Based on our de novo review of the record, we find abundant support for the trial court’s findings of fact, and we adopt them as our own. Like the trial court, we find Susan’s increased income justifies a reduction in Kirk’s monthly alimony obligation. We are similarly disinclined to grant Kirk any further relief because he voluntarily quit his employment at Metso. At the modification hearing, Kirk stated that after seeing how his supervisor dealt with many issues, he concluded he was not satisfied working at Metso. Kirk testified that he asked his supervisor if severance pay was available to him. Kirk conceded that it was his decision to leave Metso by stating the following:
Q. So it was entirely your decision to cease your employment with Metso Mineral?
A. Yes.
Lastly, we note that Kirk’s current income from self-employment falls well below the earning capacity demonstrated by his former employment. Although Kirk has the right to employment of his choice, neither equity nor the earlier cited authorities allow him to escape his obligations to Susan by voluntarily reducing his income. We affirm on this issue.
IV. Due Process.
Kirk’s brief contains no argument or analysis applying the concept of due process to the court’s alleged failure to timely hear his motion. Kirk does not cite any authority that his due process rights were violated by holding the hearing fifteen months after the request for modification. By failing to cite any authority, Kirk has waived this issue, and we decline to consider it on appeal. See Iowa R. App. P. 6.14(1)(c).
V. Appellate Attorney Fees.
An award of attorney fees is not a matter of right, but rests within the court’s discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party, the ability of the other party to pay, and whether the requesting party was defending the trial court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150
(Iowa Ct.App. 1981). We determine Susan was forced to defend the trial court’s decision and was successful in her defense. Therefore, we award Susan $750 in attorney fees.
AFFIRMED.