In Re the Marriage of Wahlert

400 N.W.2d 557, 1987 Iowa Sup. LEXIS 1089
CourtSupreme Court of Iowa
DecidedFebruary 18, 1987
Docket85-1714
StatusPublished
Cited by18 cases

This text of 400 N.W.2d 557 (In Re the Marriage of Wahlert) 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 Wahlert, 400 N.W.2d 557, 1987 Iowa Sup. LEXIS 1089 (iowa 1987).

Opinion

*559 McGIVERIN, Justice.

Petitioner Kenlyn Rena Wahlert filed a petition for modification of the dissolution decree, seeking increased child support and reassignment of income tax exemptions. Respondent Joel Len Wahlert also filed a petition for modification, seeking a reduction in child support, assessment of health insurance and travel expenses of their children to Kenlyn, and visitation during the children’s summer vacation. The district court reduced the child support obligation of Joel, reassigned one tax exemption to Kenlyn, granted Joel one month of summer visitation, and required Joel to maintain the children’s health insurance, to pay their travel expenses for visitation, and to pay $300 toward Kenlyn’s attorney fees. Upon consideration of the issues raised by Joel’s appeal, we affirm as modified the decision of the district court.

I. Background facts and procedures. On February 2, 1982, a decree of dissolution was entered terminating the five-year marriage of Kenlyn and Joel Wahlert. Custody of their two minor children, born in 1978 and 1981, was awarded to Kenlyn. Iowa Code section 598.21(4) (1981) provided that the court could order either or both of the parents to contribute to the support of the children. The decree required Joel to maintain hospital insurance for the children and to pay for all dental and noncovered medical bills and to pay child support of $150 per month per child to Kenlyn. Joel was awarded the two dependency exemptions for the children for income tax purposes. He was granted visitation with the children on two weekends each month.

Joel stayed current on his child support obligations, except for a two-month lapse in hospital insurance coverage, until Kenlyn and the children moved to Arizona in March 1985. At that time Joel reduced his payments to Kenlyn from $300 per month to $20 per month.

On July 15,1983, Joel petitioned for modification of the decree of dissolution, requesting that the court place the children in his custody. Kenlyn responded on July 21, asking the court to cite Joel for contempt for a lapse in the children’s insurance coverage, requesting that child support be increased to $400 per month and one tax exemption be reassigned to her, and seeking a change in Joel’s visitation rights.

Joel amended his application for modification on August 29, 1985. He no longer sought custody of the children, rather he sought a reduction in child support, visitation during the children’s entire summer vacation and payment of the children’s travel expenses and health and dental insurance by Kenlyn with the parties sharing all noncovered medical and dental expenses.

The court, after evidentiary hearing, modified the decree in the following respects: (1) reduction of child support payments by Joel from $150 per month per child to $120 per month per child; (2) reassignment of one of the tax exemptions from Joel to Kenlyn; and (3) allowance of visitation with the children by Joel for one month during the summer. The court further ordered that Joel pay the children’s travel expenses for visitation and maintain health and accident insurance coverage on the children; and assessed $300 of Ken-lyn’s attorney fees to Joel. It is from this modification that Joel appeals. Kenlyn has filed no brief nor taken any active part in this appeal. See Iowa R.App.P. 13(f).

Our review of the district court’s modification of the dissolution decree provisions is de novo. See In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983); Iowa R.App.P. 4.

II. Joel’s requests for modification. Courts have the authority to modify dissolution decrees when there has been a substantial change in circumstances. Iowa Code § 598.21(8) (1985); see Vetternack, 334 N.W.2d at 762. The district court in this case concluded that there had been a substantial change in Joel’s financial condition based on the depressed farm economy. It then reduced the child support obligation, stating that farming did not represent Joel’s best earning capacity. The re *560 duction was based on Joel’s court-projected earning capacity.

Joel asserts that the manner in which the court modified his obligation based on a generalized “best” earning capacity rather than his farming earning capacity, when the only testimony referred to his earnings as a farmer, was inequitable. He claims that his decrease in income warranted more favorable terms from his perspective in the modification.

The trial court has reasonable discretion in passing upon the advisability or necessity for modification of a dissolution decree provision. On appeal, we will not disturb the trial court’s conclusion unless there has been a failure to do equity. Veternack, 334 N.W.2d at 762; Norenberg v. Norenberg, 168 N.W.2d 794, 797 (Iowa 1969). We reach our conclusion, as to whether equity has been done, based on our de novo review. Iowa R.App.P. 4. As a general rule, a modification should be granted if there has been a substantial lowering of earning power for a sustained period of time. Gesmacher v. Gesmacher, 247 Iowa 836, 840, 76 N.W.2d 790, 792 (1956); see also Annotation, Change in Financial Condition or Needs of Parents or Children as Ground for Modification of Decree for Child Support Payments, 89 A.L.R.2d 7,39 (1963). This rule does not apply when a payor parent yoluntarily reduces his or her income. Ellis v. Ellis, 262 N.W.2d 265, 268 (Iowa 1978); Reed v. Reed, 260 Iowa 1166, 1168, 152 N.W.2d 190, 191 (1967).

We are faced with a situation in which the payor parent has not voluntarily reduced his income, but is continuing in an occupation that does not live up to his earning capacity nor does it allow him to remain current on his child support obligations. Joel claims that the court can review only his actual earnings, not his earning capacity, in setting the level of child support in a modification proceeding.

Our court of appeals has held that in setting an initial award of child support it is appropriate to consider the earning capacity of the parents. In re Marriage of Byall, 353 N.W.2d 103, 107 (Iowa Ct.App. 1984). Earning capacity is one of the “other factors” to be considered in fixing child support. Id. at 107-08; see Iowa Code § 598.21(4)(i).

In the case of In re Marriage of Vetternack, we reviewed the trial court’s denial of a reduction in child support following the payor’s incarceration for the commission of a felony. 334 N.W.2d at 761. We noted that Iowa Code section 598.21(8) (1981) stated:

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400 N.W.2d 557, 1987 Iowa Sup. LEXIS 1089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-wahlert-iowa-1987.