IN THE MARRIAGE OF FRUCHTENICHT, 665 N.W.2d 439 (Iowa App. 2003)

No. 2-1041 / 02-0839Court of Appeals of Iowa.
Filed March 26, 2003

Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.

A father appeals from the district court’s decision to maintain his child support and health insurance obligations to his children.AFFIRMED.

Elizabeth Lounsberry and Debra George of Lounsberry Law Office, Independence, for appellant.

Michael Kennedy, of Kennedy Kennedy, New Hampton, for appellee.

Patricia McGivern, Assistant Attorney General, Waterloo, for intervenor Child Support Recovery Unit.

Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.

VAITHESWARAN, J.

We must decide whether the district court acted equitably in declining to modify the child support and medical expense reimbursement provisions of a dissolution decree. We affirm.

I. Background Facts and Proceedings
Under the terms of a dissolution decree, Gail Fruchtenicht was awarded physical care of the parties’ three children and Jerold Fruchtenicht was ordered to pay child support. An amendment to the decree provided, “[a]ny health insurance expenses for the children not met by coverage provided through the petitioner’s employer shall be paid three-quarters by the respondent Jerold M. Fruchtenicht and one-quarter by the petitioner Gail A. Fruchtenicht.”

Over the years, the parties litigated various issues arising from the decree, including physical care. Our courts consistently ordered that care remain with Gail.

In April 2001, Gail suffered a nervous breakdown and lost her job. The younger two children moved in with Jerold. While living with him, one of the children sustained a thumb injury that required surgery. In dealing with the surgery bill, Jerold discovered Gail had not obtained health insurance coverage for the two children in his care.

Shortly after these incidents, Jerold applied to modify the physical care arrangement with respect to the two children already in his care. Before trial, Gail consented to this aspect of the modification application. The case proceeded to trial on two additional issues:

1) whether Jerold was entitled to a retroactive decrease in his child support obligation and
2) whether Gail should be obligated to pay the portion of the surgery bill that would have been covered by insurance. The district court declined to retroactively decrease Jerold’s support award[1] and ordered past medical expenses “paid as previously ordered.”

This appeal followed.

II. Retroactive Modification of Child Support
Jerold contends the district court acted inequitably in allowing his prior child support obligation to stand, given the transfer of the two younger children’s physical care to him. Gail and the Child Support Recovery Unit, which entered the case solely to address this issue, respond that the law prohibits the relief Jerold seeks. We agree with them.

Our highest court recently reaffirmed that a support order may not be retroactively decreased. In re Marriage of Barker, 600 N.W.2d 321, 323-24
(Iowa 1999). The court stated that this principle was not altered by a 1990 amendment to Iowa Code section 598.21, the statute authorizing modification of support orders.[2] Id. at 324. The court reasoned that section 598.21 only purported “to place a limit on retroactive modification of a decree when such modification is otherwise permitted.”Id.

Contrary to Jerold’s assertion, we believe this same reasoning applies to a 1997 amendment to section 598.21 that limits retroactive modification to three months after service of the modification application. Accordingly, we conclude Jerold is not entitled to a retroactive reduction of his child support obligation.

III. Medical Expenses
Jerold next contends Gail should pay the portion of their son’s surgery expense that health insurance would have covered. The district court declined to award this relief.

We agree with the district court’s decision. The decree only obligated Gail to obtain insurance through her employer, an obligation she satisfied until she became unemployed.[3] As employment was a circumstance contemplated by the parties at the time of the decree, Jerold has not shown a substantial change of circumstances warranting modification of the health insurance provisions of the decree.[4] See In re Marriage of Staton, 511 N.W.2d 418, 420 (Iowa Ct.App. 1993). Under these circumstances, we are persuaded that the court acted equitably in requiring Jerold to cover seventy-five percent of all uncovered expenses, as set forth in the decree.

IV. Appellate Attorney Fees
Gail seeks $649 in appellate attorney fees. An award rests within our sound discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We order Jerold to pay $649 toward Gail’s attorney fees.

AFFIRMED.
Zimmer, J., concurs; Sackett, C.J. concurs specially.

SACKETT, C.J., (concurs specially)

While there is nothing fair or equitable about the result reached here, I concur with the majority. This opinion has correctly applied the current law to the facts.