In Re the Marriage of Fite

485 N.W.2d 662, 1992 Iowa Sup. LEXIS 256, 1992 WL 133269
CourtSupreme Court of Iowa
DecidedJune 17, 1992
Docket90-919
StatusPublished
Cited by15 cases

This text of 485 N.W.2d 662 (In Re the Marriage of Fite) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Fite, 485 N.W.2d 662, 1992 Iowa Sup. LEXIS 256, 1992 WL 133269 (iowa 1992).

Opinion

CARTER, Justice.

Richard D. Fite, father of Janelle Fite, a minor child, appeals from the child support and visitation provisions of a district court order modifying the January 21, 1986 decree, which dissolved his marriage to appel-lee, Peggy M. Fite. Upon reviewing the record and considering the arguments of the parties, we modify and otherwise affirm the district court’s order.

The January 21, 1986 decree dissolving the marriage of Richard and Peggy made Peggy the primary custodian of their daughter, Janelle. The decree provided that the determination of a final schedule for Richard’s child visitation should await the conclusion of counseling by both parents with an independent professional children’s guidance counselor and report by that counselor to the court. For some reason not explained in the present proceeding, the counseling called for in the original decree did not take place, and Richard’s visitation rights were never finally established.

The dissolution decree provided that Richard pay Peggy the sum of $250 per month as support for Janelle until such time as she graduates from high school, marries, or otherwise becomes self-supporting. Provision was made to continue Richard’s child support obligation should Janelle attend college or vocational training after graduating from high school.

On October 16, 1989, Peggy filed the present action for modification of the original dissolution decree. She alleged that a substantial change in financial circumstances of the parties had occurred that was not within the contemplation of the court at the time the decree was entered. She alleged that the amount of Janelle’s educational expenses have doubled and that other living expenses have also increased. She asked the court to modify the decree so as to require Rick to pay $300 per month as child support and, in addition, pay one-half of Janelle’s educational expenses. Janelle attends the Des Moines Christian School, a private, sectarian educational institution located in Des Moines.

Richard filed an answer to Peggy’s modification petition, denying that circumstances had changed sufficiently to justify altering his child support obligation. In addition, he requested that the court establish his visitation rights with Janelle. Ultimately, after several temporary orders, the modification action was heard, and on May 10, 1990, an order was entered modifying the original dissolution decree. In that order, Rick’s monthly child support payment was increased to $300, and in addition, he was ordered to pay forty-five percent of the tuition costs incurred by Janelle at the Des Moines Christian School.

The May 10, 1990 order also established a detailed schedule for Richard’s visitation with Janelle. The court imposed conditions upon Richard’s rights of visitation, including abstinence from use of alcohol and use of profane, obscene, or abusive language during visitation. Janelle was authorized to “terminate visitation and return home” if she believes those conditions have not been observed. The order further provided that if a dispute arose concerning Richard’s use of alcohol he should obtain a chemical test of his blood alcohol level in order to resolve the dispute.

Richard has appealed, challenging both the child support and visitation provisions in the modification order. In addition, he seeks review of a contempt proceeding against Peggy during the pendency of the modification proceeding. Other facts relevant to the case will be considered in our discussion of the legal issues that have been presented.

I. The Child Visitation Issue.

Richard argues that the district court slighted him on the amount of child visitation that was allowed. In addition, he complains of the conditions imposed on his right to exercise visitation. In reviewing these claims, we do not disturb the quanti *664 ty of visitation or times of visitation contained in the district court’s order. To the extent that Richard also complains of the locations where he is required to pick Janelle up or drop her off, we believe that in fixing those locations the district court was only adhering to the wishes of the child’s primary custodian. We see nothing wrong in deferring to the custodian’s wishes in this regard as long as the designated locations are reasonable, based on geographic considerations. Richard has failed to establish that the locations are not reasonable.

With respect to Richard’s objections to the conditions imposed on his visitation rights with Janelle, we agree that some of these provisions are demeaning and, in addition, are an invitation to abort scheduled child visitations based on subjective determinations. The district court was correct in providing that Richard should not be permitted visitation with Janelle if he has been drinking excessively. We believe, however, that it is unwise to place in the court’s decree any formal procedure for resolving this question or to formalize a right to abort visitations based on the subjective belief of the child. Consequently, we delete those conditions as formal provisions of the decree. If Richard behaves irresponsibly in the manner specified in the deleted conditions, his conduct may be made the subject of further proceedings in the district court and may be grounds for reduction or elimination altogether of his child visitation rights.

II. The Child Support Issue.

We review the district court’s modification of Richard’s child support in two respects. We first must determine whether the record reflects a sufficient change of circumstances to warrant any modification of the original support decree. If so, we must then determine whether, as Richard contends, it was unwarranted to require him to pay a portion of Janelle’s tuition expenses at a private school.

We have previously determined that, in determining whether a change of circumstances has occurred, the district court should not consider the child support guidelines. In re Marriage of Dawson, 467 N.W.2d 271, 274 (Iowa 1991); In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991). If a change in circumstances is established for reasons other than the child support guidelines, the court must consider the guidelines in making any change in the level of support. Dawson, 467 N.W.2d at 274.

We conclude that the present modification of support was not based on the guidelines but rather on changes in the parties’ respective financial situations. That evidence is sufficient, albeit minimally so, to establish the requisite change of circumstances. If our statements in Dawson concerning the child support guidelines are to be adhered to, however, Richard’s support level should have been increased to correspond with the guideline level. Based on the income levels that the record reflects, this would require a monthly payment of $384 rather than the $250 amount specified in the original decree. Under the district court’s order, if one-twelfth of the sum representing forty-five percent of Janelle’s tuition at the Des Moines Christian School is added to the $300 monthly child support payment, the aggregate amount obtained substantially exceeds $384 per month.

In

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Bluebook (online)
485 N.W.2d 662, 1992 Iowa Sup. LEXIS 256, 1992 WL 133269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-fite-iowa-1992.