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Docket Number

No. 0-619 / 99-1888

Attorney(S)

Stephen B. Jackson and Stephen B. Jackson, Jr., of Jackson Law Office, Cedar Rapids, for appellant. Scott L. Hippen of Hippen Law Office, Ames, for appellee.

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Smart Summary

Summary of Opinion: In re the Marriage of David Edward Funk and Kathleen Diane Funk

Factual and Procedural Background

The marriage of David E. Funk and Kathleen D. Clement was dissolved in April 1988. The parties share joint custody of their minor son, with Kathleen as the physical care provider. At dissolution David's child support obligation was set at $500 per month and adjusted in 1993 to $614 per month for a cost of living increase.

Kathleen filed to modify child support on April 1, 1996, alleging changed circumstances. No further action appears in the court file until December 1998 when Kathleen moved for a trial setting conference. In February 1999 David moved to dismiss for failure to prosecute under Iowa R. Civ. P. 215.1; the trial court overruled the motion. A hearing on the modification was held October 14, 1999. The district court modified child support, set it at $1,100 per month, and made the modification retroactive to July 1, 1997. David appealed the modification ruling and Kathleen cross-appealed aspects of the modification order.

Legal Issues Presented

Whether the district court abused its discretion by making the child support modification retroactive to July 1, 1997.
Whether the modified child support amount ($1,100 per month) was equitable and within the trial court's discretion given the parties' incomes and the child support guidelines.
On cross-appeal, whether the retroactive date should have been January 1997 instead of July 1997, and whether the modified support should have been increased.

Arguments of the Parties

Appellant's (David E. Funk) Arguments

Making the modification retroactive was inappropriate because Kathleen, as the party who filed for modification, had the sole responsibility to pursue her petition in a timely manner; David had no duty to pursue her petition and should not be penalized for her delay.
The retroactive order placed him immediately in substantial arrears (approximately $14,000).
The trial court relied on his 1999 income rather than his 1997 income when setting the retroactive obligation, and his 1997 taxable income (stated as $159,377) included unspecified amounts attributable to his current wife's earnings, undermining the basis for retroactivity and the amount set.

Appellee/Cross-Appellant's (Kathleen D. Clement) Arguments

The modification should have been made retroactive to January 1997 rather than July 1997.
The modified child support as set by the trial court fails to do equity between the parties and should be increased.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Marriage of Walters, 575 N.W.2d 739, 740-41 (Iowa 1998)	Cited for the proposition that scope of review in a child support modification action is de novo.	The court invoked de novo review while giving weight to trial court factual findings.
In re Marriage of Bolick, 539 N.W.2d 357, 359 (Iowa 1995)	Cited for the principle that appellate courts give weight to trial court factual findings, especially on witness credibility.	The court acknowledged and gave weight to the trial court's factual findings and credibility determinations.
In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998)	Cited for the rule that although review is de novo, appellate courts accord trial courts considerable latitude and will disturb rulings only when there is a failure to do equity.	The court applied this standard of deference in affirming the modification as within the trial court's equitable discretion.
Sanchez v. Kilts, 459 N.W.2d 646, 649 (Iowa App. 1990)	Cited for the proposition that a defendant need not seek dismissal under Iowa R. Civ. P. 215.1 and that keeping a case alive must rest on the shoulders of the party seeking to avoid dismissal.	The court agreed David had no responsibility to pursue Kathleen's petition but concluded that fact did not control the court's discretionary ruling on retroactivity because the need for child support exists regardless of prosecutorial posture.
In re Marriage of Beecher, 582 N.W.2d 510, 513 (Iowa 1998)	Cited to show that within a specified income range the appropriate child support figure is deemed to be within the sound discretion of the court.	The court relied on guideline discretion to affirm that the $1,100 award was within the trial court's sound discretion.
In re Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995)	Cited for the proposition that appellate courts will not disturb discretionary determinations regarding support unless there is a failure to do equity.	The court relied on this standard in declining to disturb the trial court's retroactive modification.
In re Marriage of Maher, 596 N.W.2d 561 (Iowa 1999)	Referenced by the trial court as authority supporting deletion of the annual cost of living adjustment provision from the original decree.	The trial court deleted the original decree's annual cost of living adjustment provision and cited Maher; the appellate court noted this deletion in the opinion.

Court's Reasoning and Analysis

The court began by stating the applicable standard of review: child support modifications are reviewed de novo, but appellate courts give weight to trial court factual findings and afford the trial court considerable latitude, disturbing its rulings only when there is a failure to do equity.

The trial court found that a modification was warranted because the parties' incomes had changed since the original decree; neither party disputed the existence of changed circumstances on appeal. The trial court recognized unusual circumstances that made exact income determinations impossible and therefore approximated monthly incomes for both parties. The appellate court agreed with these approximations, finding Kathleen's income between $2,001 and $2,100 per month and David's income in excess of $6,000 per month.

Applying the child support guidelines to those income figures produced a minimum guideline obligation of $1,056 per month, subject to the trial court's discretion to deviate. The trial court set child support at $1,100 per month and ordered the modification to be retroactive to July 1, 1997.

Addressing David's contention that retroactivity was inappropriate because Kathleen failed to pursue her petition, the appellate court agreed David had no obligation to pursue Kathleen's petition but concluded that fact did not undermine the trial court's discretionary decision to award retroactive support because the child's ongoing need for support exists irrespective of procedural delays.

Regarding David's argument that the trial court improperly relied on 1999 income rather than 1997 income, the court accepted the limited evidence showing David's 1997 taxable income (stated by him as $159,377) and found the modified obligation properly based on a net monthly income for David in excess of $6,000 per month from 1997. Given the guideline range and the trial court's broad discretion (as reflected in the guidelines and prior caselaw), the appellate court concluded the $1,100 award was within the trial court's sound discretion.

The court also noted the trial court's deletion of the original decree's annual cost of living adjustment provision as unnecessary under current case law (citing Maher). Applying the standards of de novo review tempered by deference to trial court discretion and equity considerations, the appellate court found the retroactive modification equitable to both parties and affirmed.

Holding and Implications

AFFIRMED.

Holding: The district court's order modifying child support was affirmed. The modification set child support at $1,100 per month and made the change retroactive to July 1, 1997.

Direct implications and consequences:

The trial court's modification, including its retroactive effective date (July 1, 1997) and the monthly award of $1,100, remains in force.
Costs on appeal were assessed to Kathleen; no attorney fees were awarded.

The opinion affirms the trial court's exercise of discretion and does not purport to establish a new legal precedent beyond applying existing standards of review and equitable discretion in child support modification proceedings.

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IN RE THE MARRIAGE OF DAVID EDWARD FUNK AND KATHLEEN DIANE FUNK Upon the Petition of DAVID EDWARD FUNK, Appellant/Cross-Appellee, And Concerning KATHLEEN DIANE FUNK, a/k/a KATHLEEN DIANE CLEMENT, Appellee/Cross-Appellant.

VOGEL, J.

David E. Funk appeals and Kathleen D. Clement cross-appeals a district court order granting Kathleen's request to modify David's child support obligation. We find the trial court did not abuse its discretion in ordering the modification be made retroactive to July 1, 1997, and the support obligation ordered was equitable and within the sound discretion of the trial court. We affirm.

Background facts. The marriage of David and Kathleen was dissolved in April 1988. The parties' share joint custody of their minor son, David, with Kathleen as the physical care provider. At the time of the dissolution, the district court set David's child support obligation at $500 per month. This amount was most recently adjusted to $614 per month in 1993 to reflect a cost of living increase.

On April 1, 1996, Kathleen filed for a modification of the dissolution decree as to the child support obligation, due to changed circumstances. No further action appears in the court file until Kathleen filed a motion for a trial setting conference in December 1998. In February 1999, David filed a motion to dismiss under Iowa Rule of Civil Procedure 215.1, due to a failure to prosecute, although no such notice was ever generated from the clerk of court. The trial court overruled this motion and the hearing on the modification was held on October 14, 1999. David now appeals the modification ruling and Kathleen cross appeals.

Scope of review. Our scope of review of a child support modification action is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740-41 (Iowa 1998); Iowa R. App. P. 4. We give weight to the trial court's factual findings, especially when considering the credibility of witnesses, but are not bound by them. In re Marriage of Bolick, 539 N.W.2d 357, 359 (Iowa 1995). "Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity." In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998).

Retroactive modification of the child support order. The trial court found a modification of child support was in order due to the change in the parties' incomes since the time of the original decree. On appeal, neither party has disputed this finding. In attempting to determine an annual and monthly salary for the parties, the trial court noted the "unusual circumstances in this case . . . make exact determinations impossible." Based on the record before it, the trial court attributed certain monthly incomes to both parties for the purpose of a child support calculation. We agree with these approximations, finding Kathleen's income to be between $2,001-$2,100 per month and David's income to be in excess of $6,000 per month. According to the child support guidelines, these incomes establish a minimum child support obligation of $1,056, subject to the trial court's discretion to make an appropriate deviation. The trial court set $1,100 per month as the appropriate amount of child support. The trial court also made this modification retroactive to July 1, 1997.

David does not contest the amount but alleges making the support retroactive was inappropriate. He asserts Kathleen, as the party filing this modification, had the sole responsibility to pursue her petition in a timely manner. Therefore, he contends the trial court abused its discretion by ordering a retroactive modification, which put him immediately in arrears by approximately $14,000.

We agree David had no responsibility to pursue an action he did not file. Sanchez v. Kilts, 459 N.W.2d 646, 649 (Iowa App. 1990) (finding the defendant need not seek dismissal under Iowa Rule of Civil Procedure 215.1, but keeping a case alive must rest squarely on the shoulders of the party seeking to avoid dismissal). We recognize the duty did not fall to David to pursue Kathleen's petition. However, we find that has little bearing on the trial court's discretionary ruling as the ongoing need for child support remains regardless of the legal posture of the parties.

David next argues the retroactive child support order preceded a change in circumstances, making such an order inequitable. He alleges the trial court based the modified child support order on his 1999 income amount rather than his 1997 income amount, which was substantially lower. David testified his taxable income for 1997 was $159,377, with an unspecified portion attributable to his current wife's earnings. With this limited evidence, we find the modified child support was appropriately based on a net monthly income for David in excess of $6,000 per month from 1997. This income level puts the child support amount squarely within the sound discretion of the trial court. The child support guideline states, "In this range the appropriate figure is deemed to be within the sound discretion of the court or the agency fixing support by administrative order." See In re Marriage of Beecher, 582 N.W.2d 510, 513 (Iowa 1998). In addition, the trial court noted the parties had not followed the cost of living adjustment that was originally ordered to be implemented on an annual basis. Because the trial court has broad discretion in determining such issues, we will not disturb a ruling on appeal unless there is a failure to do equity. In re Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995). We find the retroactive modification order of the court to be equitable to both parties and affirm.

The trial court went on to delete this provision from the original decree, finding it unnecessary under current case law and citing In re Marriage of Maher, 596 N.W.2d 561 (Iowa 1999).

Cross-appeal. Kathleen cross-appeals, alleging the trial court should have made the modification retroactive to January of 1997 rather than only to July of 1997. She also asserts the modified child support fails to do equity between the parties and urges us to increase the amount. As discussed above, the trial court has great discretion in this area. In establishing $1,100 per month to be the appropriate child support obligation to impose, the court considered many factors, including the lack of a cost of living adjustment since 1993, the incomes of the parties, the disparity of earning capabilities between the parties, and other support obligations of David. The amount awarded is clearly within the discretionary range and the court made it effective retroactively more than two years. After reviewing the record on appeal, we find the amount of child support and the retroactive date set by the trial court to be within the trial court's discretion and equitable to the parties. Costs on appeal are assessed to Kathleen, and we award no attorney fees. Accordingly, we affirm the modification order of the trial court.

AFFIRMED.

IN RE THE MARRIAGE OF FUNK