Opinion
No. 4-077 / 03-0864
Filed March 10, 2004
Appeal from the Iowa District Court for Chickasaw County, John G. Bauercamper, Judge.
Petitioner appeals from a decree modifying child support. AFFIRMED AS MODIFIED.
Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, for appellant.
Russell Schroeder Jr. of Schroeder Law Office, Charles City, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Laureen Tilkes appeals from the district court's modification decree. We affirm as modified.
Background Facts and Proceedings.
The 1982 marriage between Michael and Laureen was dissolved in August 1999. They have four children: Andrew born in 1986, twins Lindsey and Lisa born in 1987 and Nathan born in 1992. The dissolution decree granted joint custody of the children to Michael and Laureen and placed the children in the physical care of Laureen. Michael was ordered to pay $1,100 per month in child support. Physical care of Andrew was the subject of an April 2000 modification petition by Michael. This court reversed the district court and left Andrew's care with Laureen. In re Marriage of Tilkes, No. 00-0555 (Iowa Ct.App. Apr. 27, 2001).
On June 20, 2001, Michael again filed a petition to modify, this time seeking to reduce his child support obligation. He claimed he was making substantially less money and Laureen substantially more, thereby creating a substantial change of circumstances. On August 3, Michael amended his petition, again seeking the physical care of Andrew.
On October 31, 2001, Michael filed an application to suspend the child support he was paying Laureen for Andrew along with an application seeking child support from Laureen. In support of these requests, Michael alleged that Andrew had been residing with him informally since August 28, 2001 despite the court's decree that Laureen had physical care. On February 5, 2002, the district court denied the applications finding that Michael had "presented no legal authority for entry of a temporary support order or for temporary modification of his support obligation."
On January 27, 2003, Laureen amended her answer, seeking sole custody of all four children. On February 7, the parties filed a partial stipulation which the district court approved by order on the same date. The parties agreed to retain joint custody of Lindsey, Lisa and Nathan with Laureen entitled to their physical care subject to Michael's visitation. Laureen waived physical care of Andrew and agreed visitation with her would be at Andrew's discretion. The district court's order approving the stipulation stated that the remaining issues for trial were child support modification, attorney fees and court costs.
On April 15, 2003, the district court filed its modified decree, finding a substantial change in circumstances. Michael's child support obligation was decreased from $1,100 per month for four children to $208 per month for the three youngest children. The change was made retroactive through November 2001; therefore the court ordered Laureen to repay Michael the overpaid child support in the amount of $15,164. It also ordered Laureen to pay Michael child support for Andrew beginning November 2001. Laureen's request for attorney fees was denied. Laureen appeals.
Pursuant to the child support guidelines Michael's child support obligation for three children is $644.15 and Laureen's obligation for one child is $435.92. Michael is thus responsible for the offset amount of $208.23.
Scope of Review.
Our review of this matter is de novo. See Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate rights anew rights on those issues properly presented. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999). We give weight to the fact findings of the district court, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
Michael's Child Support Obligation.
Laureen first argues that the district court erred in terminating Michael's obligation to pay her child support for Andrew effective November 2001. We agree.
In In re Marriage of Barker, the Iowa Supreme Court reaffirmed the established principle that "we may not reduce or eliminate periodic child support obligations that have accrued prior to the time that modification is ordered." In re Marriage of Barker, 600 N.W.2d 321, 324 (Iowa 1999). This principle is based on the equally established principle that these child support payments become final judgments and liens as they come due, unless otherwise provided in the divorce decree. In re Marriage of Shepherd, 429 N.W.2d 145, 146 (Iowa 1988).
Because a retroactive reduction of child support is not permitted under Iowa case law, we reverse the district court's order requiring Laureen to repay Michael $15,164 for overpaid child support for Andrew from November 2001 through March 2003. Moreover, Michael's obligation of support for Andrew did not end until the filing of the partial stipulation on February 7, 2003. Although a stipulation of a settlement in a dissolution proceeding is a contract between the parties, it becomes a final contract when it is accepted and approved by the court. In re Marriage of Lawson, 409 N.W.2d 181, 182 (Iowa 1987) (citing Prochelo v. Prochelo, 346 N.W.2d 527, 529 (Iowa 1984)). In this case, the court approved the stipulation, in which Laureen waived physical care of Andrew, on February 7 leaving only child support modification, attorney fees and costs as unresolved issues for trial. Therefore, Michael's obligation for child support for Andrew continued until the filing of the partial stipulation on February 7, 2003 when he became the physical custodian of Andrew. We modify to reflect the same.
Laureen's Child Support Obligation.
Laureen next contends that the district court erred in requiring her to retroactively pay child support for Andrew to Michael beginning November 2001 as Michael did not have physical care of Andrew. Michael argues the district court correctly ordered retroactive child support from Laureen commencing November 2001 as he had de facto care of Andrew.
Though Andrew has been residing primarily with Michael since August 26, 2001, Laureen retained physical care of Andrew pursuant to prior court orders until the district court approved the parties' partial stipulation as to Andrew's care on February 7, 2003. We must then decide if the district court abused its discretion in ordering Laureen to pay retroactive child support for Andrew. Under the Iowa Code and Barker, a child support order may be retroactively increased. See Iowa Code § 598.21(8) (2001); Barker, 600 N.W.2d at 323. "Judgments for child support . . . which are subject to a modification proceeding may be retroactively modified only from three months after the date the notice of the pending petition for modification is served on the opposing party." Iowa Code § 598.21(8)(k) (emphasis added).
Laureen asserts that because Michael was the noncustodial parent, even though Andrew resided with him, he may not collect child support from the custodial parent and therefore her obligation should not begin until April 15, 2003, the date of the modified decree. Earlier in this decision we struck the provision that forced Laureen to return to Michael, child support already accrued as individual judgments. If we would now affirm the court's order requiring Laureen to pay Michael support for the period prior to the filing of the stipulation, the result would be having both parents paying child support to the other for the same child during the same time period. While there is precedent for this in our case law, See In re Marriage of Chesterman, 462 N.W.2d 696, 697-98 (Iowa Ct.App. 1990), we think under these facts it is unwise. Although Andrew was not living with Laureen, she was nevertheless the parent legally granted his physical care. Given the very tumultuous family situation, Andrew could have returned to her home at any given time during that period. However, until the issue of Andrew's physical care was finally resolved by the parties' stipulation and court approval in February 2003, Laureen still maintained that legal responsibility. See Chesterman, 462 N.W.2d at 698 (Sackett, C.J., dissenting) (disagreeing with the majority decision for ordering a parent to pay child support for a period when she was the custodian under the decree, had a home available to the child, and was opposed to the child living with his father). We agree with Laureen, that her child support for Andrew should not begin until the district court approved the partial stipulation in February 2003. Therefore, we strike the provision requiring Laureen to pay retroactive child support from November 2001 through February 2003. Laureen's child support obligation for Andrew should commence after February 7, 2003.
In sum, we reverse the district court's retroactive reduction in Michael's child support, which required Laureen to repay him $15,164 in child support from November 2001 through March 2003. We also reverse the district court's retroactive setting of support, requiring Laureen to pay Michael child support for Andrew beginning November 2001 and instead find Laureen's obligation commenced after the filing of the February 7, 2003 court order.
Determining Net Income.
We have reviewed the district court's basis for arriving at the six-year average of Michael's adjusted income and decline making any further adjustments.
Attorney Fees. Trial fees.
Laureen claims that the district court erred in denying her $3,500 in trial attorney fees. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). Upon review of the record, we decline to tamper with this discretionary decision.
Appellate fees.
Both Laureen and Michael seek attorney fees on appeal. Such an award is also discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We award Laureen attorney fees in the amount of $2,500.00 but also assess costs on appeal to her. AFFIRMED AS MODIFIED.
We note the massive appendix contained a great deal of materials which do not bear directly on the issues presented for our review. As the entire record is available to us, we urge appellant to comply with Iowa Rule of Appellate Procedure 6.15, by including only relevant portions of the record in the appendix, thereby reducing both excessive printing expense and the enormous burden on the appellate courts in referencing points on appeal. See State v. Oppelt, 329 N.W.2d 17, 21 (Iowa 1983).