Benjamin Moody v. Brooke Trimble

• Court: Court of Appeals of Iowa
• Decided: September 21, 2022
• Docket: 22-0180
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0180 Filed September 21, 2022

BENJAMIN MOODY, Petitioner-Appellant/Cross-Appellee,

vs.

BROOKE TRIMBLE, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Butler County, Christopher C. Foy,

Judge.

Benjamin Moody appeals the district court’s child-support calculations.

Brooke Trimble cross-appeals the district court’s denial of her request to modify

visitation. AFFIRMED AS MODIFIED AND REMANDED ON APPEAL;

AFFIRMED ON CROSS-APPEAL.

Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton, for

appellant/cross-appellee

Elizabeth M. Wayne of Papenheim Law Office, Parkersburg, for

appellee/cross-appellant.

Considered by Ahlers, P.J., and Badding and Chicchelly, JJ. 2

AHLERS, Presiding Judge.

The parties are the parents of a child born in 2017. In 2019, a stipulated

decree granted both parents joint legal custody, the father physical care, and the

mother visitation. The mother was also ordered to pay $73 per month in child

support.

Less than five months after entry of the stipulated decree, the mother filed

this action seeking to change physical care from the father to her, or, alternatively,

to joint physical care. During trial, she also requested more visitation as an

additional alternative. The father resisted, and he requested additional child

The district court denied the mother’s requested modification. The court

concluded the mother had failed to meet her burden to prove a substantial change

of circumstances to warrant modification of physical care because the changes

she relied upon were neither substantial nor outside the contemplation of the court

when the stipulated decree was entered.1 The court also concluded that a

modification of child support was required, as the amount of support owed under

the child support guidelines deviated from the original support obligation by more

than ten percent. The court raised the mother’s child support obligation to $88 per

month.

1 The district court’s order did not address the mother’s alternative request for additional visitation. She filed an Iowa Rule of Civil Procedure 1.904(2) motion seeking a ruling on her request for additional visitation. In its order denying the motion, the court stated, “As the parties have failed to establish sufficient grounds to amend or change the order, it shall remain as it is.” 3

The father appeals, asking for a larger increase in the mother’s child-

support obligation using imputed income for the mother. The mother cross-

appeals, limiting her challenge to her claim that she should have been granted

more visitation. Both parties request appellate attorney fees.

I. Standard of Review

We review child-support and visitation modification proceedings de novo.

In re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006) (child-support

modification); Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App. 2016) (visitation

modification). Because our review is de novo, we will give weight to the district

court’s findings of fact—especially as to witness credibility—but we are not bound

by them. Iowa R. App. P. 6.904(3)(g).

II. Child-Support Modification

Child-support obligations are determined using the guidelines established

by the Iowa Supreme Court and set forth in chapter 9 of the Iowa Court Rules.

Iowa Ct. Rs. 9.1, 9.2. The guidelines apply to unwed parents.2 Markey v. Carney,

705 N.W.2d 13, 19 (Iowa 2005) (citing Iowa Code section 600B.25(1) to conclude

that child support is set pursuant to the guidelines with unwed parents); see Iowa

Code §§ 600B.25(1) (directing that support be determined pursuant to section

598.21B); 598.21B (directing the establishment and use of guidelines to determine

support). “The purpose of the guidelines is to provide for the best interests of the

2We recognize Iowa Code section 600B.25 (2019) provides that “the court shall establish the father’s monthly support payment and the amount . . . pursuant to section 598.21B.” (Emphasis added.) However, we have previously affirmed child-support orders entered pursuant to section 600B.25 against mothers as well. See, e.g., McKnight v. Anderson, No. 20-1115, 2021 WL 1904657, at *2, 4 (Iowa Ct. App. May 12, 2021). 4

children by recognizing the duty of both parents to provide adequate support for

their children in proportion to their respective incomes.” Iowa Ct. R. 9.3(1).

Applying the guidelines requires determining each parent’s net monthly income.

In re Marriage of Rife, No. 19-0679, 2020 WL 1542314, at *3 (Iowa Ct. App. Apr. 1,

2020). Once established, the child-support obligation can be modified upon

showing a substantial change in circumstances. Smith v. Janssen, No. 15-1421,

2016 WL 4384699, at *3 (Iowa Ct. App. Aug. 17, 2016) (citing Iowa Code §

598.21C(1)). By statutory definition, a substantial change in circumstances

warranting modification occurs “‘when the court order for child support varies by

ten percent or more from the amount’ that would be due under the child support

guidelines.” Id. (quoting Iowa Code § 598.21C(2)(a)).

The district court calculated the mother’s income based on evidence

suggesting she earns $5 per hour. Using that income figure, the court determined

the guideline amount of support to be $88 per month. As that amount exceeds the

original support obligation by ten percent or more, the court found a substantial

change in circumstances and raised the mother’s support obligation to $88 per

The father asserts the court should have imputed income to the mother

because she is intentionally underemployed. In response, the mother does not

disagree with the district court’s determination that a substantial change in

circumstances occurred or that her child support should be raised. She simply

contends that it was raised to the proper amount based on her actual income.

Determining a parent’s income for the purpose of calculating child support

starts with the premise that actual income will be used rather than imputed income. 5

See Iowa Ct. R. 9.5(1)(d) (“To determine gross income, the court shall not impute

income under rule 9.11 except . . . [p]ursuant to agreement of the parties, or . . .

[u]pon request of a party, and a written determination is made by the court under

rule 9.11.”). However, income may be imputed “[i]f the court finds that a parent is

voluntarily unemployed or underemployed without just cause.” Iowa Ct. R. 9.11(4).

In that event, “child support may be calculated based on a determination of earning

capacity” rather than actual earnings. See id.

We find it appropriate to impute income to the mother here. While the

mother asserts she earns $200 per week (equating to $5 per hour on a forty-hour

week), there was evidence that she is underreporting her income by receiving

additional payments in cash. But setting aside any dispute over her actual

earnings, even if we take the mother at her word that she earns $200 per week,

we find her to be voluntarily underemployed without good cause. No evidence

suggested the mother has any health issues or other impediments that would keep

her from working a full-time job, as she already does, for at least minimum wage.

The mother’s explanation for working for less than minimum wage3 is that she

enjoys her job and “[i]t’s not about, you know, working. It’s more about if you

actually love your job.” She also points out that she has the same job now that

she had when the original decree was entered.

We do not find the mother’s explanation to be good cause for her

underemployment. While working a job that one loves is an aspiration shared by

many, many people must settle for a job that pays the bills and supports their

3 Iowa’s minimum wage is $7.25 per hour. See Iowa Code § 91D.1(1)(a). 6

families. That is often the harsh reality of adulthood and responsible parenting.

Our consideration is the child’s best interest, not what is in the mother’s best

interest. See McKenzie, 709 N.W.2d at 533–34 (imputing income when the payor

switched to a lower paying job in order to move to be with the payor’s significant

other). An able-bodied parent is not permitted to put it in neutral—or keep it in

neutral—when the parent has a support obligation. To permit the mother to do so

here would “place [her] selfish desires over the welfare of [the] child and the

custodial parent, not provide for the needs of [the] child, and create a substantial

injustice between the parties.” See id. at 534. To be clear, we are not saying that

the mother—or any parent—is required to take the highest paying job available

regardless of job satisfaction. We are simply saying that, based on the facts of this

case, the mother is not permitted to work for less than minimum wage solely for

job-satisfaction reasons without consideration for her child’s welfare. Imputing

income is warranted here to avoid injustice.

Having made the decision to impute income to the mother, the question

becomes how much. The evidence establishes that, prior to 2015 when she took

her current job, the mother was making $10 per hour. We find this to be

representative of her earning capacity, so we find child support should be based

on the mother earning $400 per week. We remand to the district court to

recalculate the mother’s child-support obligation based on that income figure.

III. Visitation Modification

On cross-appeal, the mother contends the district court should have

modified the visitation provisions of the original decree so that she may exercise

additional visitation with the child. As the party seeking modification of the 7

visitation provisions, the mother has the burden to establish that “there has been

a material change in circumstances since the decree and that the requested

change in visitation is in the best interests of the [child].” Christy, 878 N.W.2d at

464 (citation omitted). The change in circumstances that must be demonstrated

in visitation cases is “much less extensive” than that which must be shown to

“modify child custody.” Id. (citation omitted).

Even with the less stringent requirement, the mother failed to meet her

burden of proof to justify modification. On appeal, she does not argue any change

in circumstance occurred to warrant a change in visitation.4 Instead, she focuses

solely on the child’s best interests. Accordingly, the mother cannot satisfy the first

necessary step to modify visitation, and her claim fails.

Accordingly, we decline the mother’s request for relief and affirm the district

court on her cross-appeal.

IV. Appellate Attorney Fees

Both parties request appellate attorney fees. Only the prevailing party is

eligible for an award of attorney fees. Iowa Code § 600B.26 (permitting an award

of attorney fees to “the prevailing party”). As the mother is not a prevailing party,

we decline her request for attorney fees. As the prevailing party, the father is

4 The mother points out that once the child begins school “there will be more opportunities for expanded visitation” and “there are not any provisions for winter and spring break once [the child] starts school.” However, this change in circumstance has yet to occur, and it was within the contemplation of the parties when they entered the stipulated decree. Cf. Collett v. Vogt, No. 17-0986, 2018 WL 739333, at *3 (Iowa Ct. App. Feb. 7, 2018) (“[T]he change in circumstances necessary to modify the school-selection or visitation provisions of a decree must still have been outside the contemplation of the district court at the time it entered its original decree.”). So, it would not amount to a change in circumstance warranting modification of visitation. 8

eligible for attorney fees, but such an award is discretionary. See Meek v. Brown,

No. 21-1001, 2022 WL 3423065, at *3 (Iowa Ct. App. Aug. 17, 2022). To determine

whether to award appellate attorney fees, “we consider the needs of the party

making the request, the ability of the other party to pay, and whether the party

making the request was obligated to defend the decision of the trial court on

appeal.” Id. (citation omitted). Though the father has the need for an attorney fee

award, the mother has a negligible ability to pay, so we deny the father’s request.

V. Conclusion

We affirm as modified on the father’s appeal, and we remand to the district

court for recalculation of the mother’s child-support obligation with an imputed

income of $400 per week. We affirm the district court’s denial of the mother’s

request to modify visitation. We deny both parties’ requests for appellate attorney

fees.

AFFIRMED AS MODIFIED AND REMANDED ON APPEAL; AFFIRMED

ON CROSS-APPEAL.