In re the Marriage of Herum , 919 N.W.2d 636 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1161
Filed May 2, 2018
IN RE THE MARRIAGE OF STACY HERUM AND SCOTT HERUM
Upon the Petition of
STACY HERUM, n/k/a STACY ZUMBACH,
Petitioner-Appellee,
And Concerning
SCOTT HERUM,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Emmet County, Nancy L.
Whittenburg, Judge.
Scott Herum appeals the district court decision partially granting and
partially denying his petition to modify a dissolution decree. AFFIRMED.
Christine B. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for
appellant.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,
Decorah, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ.
2
TABOR, Judge.
Scott Herum asked the district court to modify the alimony, physical-care,
and child-support provisions of the decree dissolving his marriage to Stacy
Zumbach. Scott’s modification petition cited the declining farm economy, Stacy’s
new romantic relationship, and the couple’s eldest son moving in with Scott as
material changes since entry of the decree. The court partially granted Scott’s
petition but on appeal he contends the court committed several errors. Because
Scott did not establish any basis for further modification, we affirm.
I. FACTS AND PRIOR PROCEEDINGS
Scott and Stacy had a fifteen-year marriage during which they had three
children: a son D.H., born in 1998, a daughter Em.H., born in 2001, and a son
Et.H., born in 2005. Also during their marriage, Scott and Stacy built and ran a
large family farm comprising several thousand acres of land. At the time of the
dissolution in 2012, they filed a joint stipulation and property settlement which the
court approved and wholly incorporated into the decree. The record contains very
limited information regarding the parties’ finances before dissolution. Part of the
purpose of the stipulated decree, according to the parties, was to keep financial
information private. The parties did file a joint agricultural balance sheet showing
they had a net worth of around $5.9 million dollars. But, the stipulation and
subsequent agricultural balance sheet show Stacy received only around $1.3
million dollars worth of property in the dissolution. In addition, Scott agreed to pay
Stacy monthly $3000 in child support and $2500 in alimony. The parties had joint
custody, but Stacy had physical care with reasonable and liberal visitation to Scott.
Neither party appealed the decree.
3
In 2015, Scott filed a petition for modification, alleging several substantial
changes in circumstances. Since the decree, the couple’s eldest son, D.H., had
moved in with Scott; Scott therefore asked for a transfer of physical care and a
reduction in his child support obligation. The farm economy had taken a downturn,
and Scott asserted he was unable to continue making alimony payments. Also,
Scott alleged Stacy was cohabiting with her boyfriend, Dennis Tobin, and therefore
alimony should be terminated. He also asserted Stacy’s relationship with Dennis
was creating a poor environment in Stacy’s home such that Scott should be given
more time with the children.
Stacy stipulated before the modification hearings that physical care of D.H.
should be transferred to Scott. The district court agreed and, finding D.H. had
completed high school during the pendency of the modification, reduced Scott’s
child support obligation to $2200 per month, as set out in the decree. With respect
to alimony, the district court found the support award was actually part of the
property division and was therefore non-modifiable. In addition, the court found
Scott did not meet the burden to show the custody arrangements of the two
younger children should be disturbed.
On appeal, Scott contends (1) the district court erred in finding the alimony
award was a part of the property division and therefore unmodifiable; (2) the court
should have increased his parenting time; (3) the court erred in not complying with
the child support guidelines under Iowa Court Rule 9.11 and should have reduced
his child support obligation due to a substantial change in circumstances; Scott
also asserts the court should have awarded him retroactive reimbursement of child
support paid; and (4) the court’s delay in issuing the modification decision
4
constituted an abuse of discretion and violated Iowa Court Rule 22.10. Both
parties request attorney fees.
II. LEGAL STANDARDS AND SCOPE OF REVIEW
Because all the following issues lie in equity, we review the modification de
novo. In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006). While we are not
bound by the fact-findings of the district court, we accord them weight, especially
as to credibility determinations. In re Marriage of Dean, 642 N.W.2d 321, 323
(Iowa Ct. App. 2002).
III. ANALYSIS
A. Alimony
Scott petitioned to modify the alimony award based on a substantial change
in circumstances: his reduced farm income and Stacy’s alleged cohabitation with
her boyfriend. The district court denied Scott’s request to terminate his alimony
obligation. On appeal, Scott argues it was error for the court to “modify the decree
from the award of traditional alimony to a property settlement.” But the district
court did not modify the decree. Instead, it found Stacy’s alimony constituted a
property award that—based on the parties’ own stipulation—was not subject to
modification. On our de novo review of the record, we disagree with the district
court’s reasoning but reach the same result.
Under Iowa law, marital property should be divided equitably between the
parties. See Iowa Code § 598.21 (2015). An equitable division is not always
strictly equal. In re Marriage of Hansen, 886 N.W.2d 868, 871 (Iowa Ct. App.
2016). Here, Scott and Stacy agreed that from their $5.9 million estate Stacy would
take property equaling only $1.3 million. Scott agreed to pay child support of $3000
5
per month with reductions when the children turned eighteen or graduated from
high school. Scott also agreed to pay Stacy $2500 per month in alimony “until
Stacy attains the age of sixty-five (65) years, dies, or remarries, whichever first
occurs.” Scott would maintain life insurance coverage with Stacy as the primary
beneficiary for $500,000 in the event of his untimely death before any of the
terminating events. Scott and Stacy further agreed, “Neither the amount nor the
term of the alimony shall be modified.”
A stipulation is a contract between the parties. In re Marriage of Morris, 810
N.W.2d 880, 886 (Iowa 2012). But, the stipulation
is not binding on the court, as the court has the responsibility to
determine whether the provisions upon which the parties have
agreed constitute an appropriate and legally approved method of
disposing of the contested issues . . . . [T]he court has the authority
to reject the stipulation. Consequently, once the court enters a
decree adopting the stipulation, the decree, not the stipulation,
determines what rights the parties have . . . . [I]n ascertaining the
rights of the parties after final judgment, it is the intent of the district
court that is relevant, not the intent of the parties.
Id. (internal quotations and citations omitted). In other words, a decree should not
be affirmed just because the parties agreed to the stipulation providing the basis
for the court’s decisions. See In re Marriage of Jones, 653 N.W.2d 589, 593–94.
On review,
[a] judgment or decree is to be construed like any other written
instrument. The determinative factor is the intention of the court as
gathered from all parts of the judgment. Effect must be given to that
which is clearly implied as well as that which is expressed. In
construing a judgment, force and effect should be given every word,
if possible, to give the judgment as a whole a consistent, effective
and reasonable meaning.
6
In re Marriage of Lawson, 409 N.W.2d 181, 182–83 (Iowa 1987) (internal
quotations and citations omitted).1 A husband and wife “may arrange between
themselves for the disposition of their property interests . . . and effect will be given
by the court to a stipulation, if entered into in good faith and the provisions thereof
are found to be fair and reasonable.” Slattery v. Slattery, 116 N.W. 608, 609 (Iowa
1908).
Here, the decree court found the stipulation was “fair and equitable and
should be incorporated as part of this Decree . . . in its entirety, the same as though
fully set forth herein.” The decree court also stated, “The property rights of the
parties, as well as their rights, privileges, and obligations as parents, shall be
governed by the terms and conditions therein contained,” including all the
provisions set out above. Neither party appealed the original decree. In this
appeal, neither party has asserted that any provision of the stipulation or decree is
unenforceable, including the provision that disallows modification of the alimony
amount and duration.2
Instead, Scott’s modification petition asked the court to apply Iowa Code
section 598.21C(1) and find a substantial change in circumstances justified
terminating the alimony award. But the court instead, analyzing the case under
1
Scott encourages us to resolve these issues on contract principles. This is not the rule
when the court merges the stipulation into the decree, as the court did here. See Morris,
810 N.W.2d at 886.
2
A recent supreme court case addressed a provision in a pre-marital agreement waiving
attorney fees in a subsequent dissolution action. In re Marriage of Erpelding, ___ N.W.2d
___, ___, 2018 WL 1122305 (Iowa 2018). The supreme court determined “a premarital
agreement waiver of attorney fees pertaining to child support or spousal support is
unenforceable because it adversely affects a spouse’s or child’s right to support in
contravention of [Iowa Code] section 596.5(2).” Id. at ___. Here, neither party argues the
non-modification provisions for either child support or alimony have an analogous
“adverse effect.”
7
the principles of Knipfer v. Knipfer, 144 N.W.2d 140 (Iowa 1966), found the award
constituted a non-modifiable property settlement.3 In Knipfer, our supreme court
found an award for “alimony” was a property division provision where the wife gave
up her share in substantial marital property. 144 N.W.2d at 145. The award was,
therefore, not modifiable. In Knipfer, the wife received an award of $500 per month
for as long as she lived, “but in any event for a minimum period of ten years.” Id.
at 144. This provision resulted in the wife receiving at least $60,000 over ten years,
instead of an initial award of an equitable share of the marital estate, valued around
$100,000. Id. The payments did not terminate upon the wife’s remarriage. Id.Ostensibly, they would not terminate within the minimum period of ten years, even
upon the wife’s death. Id. The husband was required to maintain a life insurance
policy of $50,000 for the benefit of the wife, in the event of his untimely death. Id.The court found the award was “definite, certain and fixed and was to continue for
a definite time, even beyond [the wife’s] life, a factor not generally embodied in an
alimony allowance.” Id. at 144. The fact the award was made in installments rather
than as a lump sum, the court found, was immaterial. Id. But, an important
distinguishing factor was that the wife, at the time of the divorce, was a ward of the
state and confined in an institution due to debilitating alcoholism. Id. The court
found payment in installments was preferable to a lump sum because she was
believed to be incapable of managing money on her own. Id. What was significant
was that the payment was permanent, “for a fixed or determinable sum,” and given
in lieu of the wife’s rights in property or her dower rights. Id.3
Iowa Code § 589.21(7) states, “Property divisions made under this chapter are not
subject to modification.”
8
In reaching its conclusion, the court noted the decree’s use of the term
“alimony” was not conclusive. Id. at 142. In deciding whether an award constitutes
alimony or a property division, courts must consider
all the relevant factors, including the provisions of the agreement
between the parties, the circumstances under which the agreement
was made, the nature and value of the property owned by and to be
divided between the parties, the original divorce proceedings and the
terms of the divorce decree sought to be modified.
Id. at 143.
Scott distinguishes Knipfer, contending the award to Stacy is for alimony,
and therefore modifiable. Stacy urges us to accept the district court’s reasoning
and find the alimony award was actually part of the property division based on her
testimony that she voluntarily took a smaller share of the property in exchange for
a larger alimony award.
Since Knipfer, our courts have rarely had occasion to decide whether an
award labeled “alimony” is actually a property division or vice versa. In Zinger v.
Conklin, the decree court divided the marital property and ordered the husband to
pay the wife $750 within thirty days of the entry of the decree and $250 monthly
for two years, followed by $225 monthly until the wife’s death or remarriage,
whichever should occur first. No. 12-0433, 2012 WL 3196123, at *1 (Iowa Ct. App.
Aug. 8, 2012). These payments, the district court explained, “shall represent
additional funds to accomplish an equal division of the assets of the parties.” Id.The court further decreed neither party was liable for any alimony. Id. When the
husband died before the wife, the wife sued the estate for continuation of the
payments. Id. But, this court determined the award was for alimony and therefore
terminable upon the husband’s death. Id. at *3. The award was not for a “fixed or
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determinable sum,” as was the case in Knipfer. Id. We further found the language
of the decree suggested the award was alimony for two reasons: first, because the
payments were to be made to the clerk of court, usually a feature of alimony;
second, because the payments terminated upon the wife’s death or remarriage,
language typically used to describe an alimony award. Id. Therefore, even if a
decree specifically notes neither party gets alimony and additional funds are
awarded “to accomplish an equal division” of marital assets, but does not establish
a fixed or determinable sum and sets out conditions typical to an award of alimony,
the court may determine the award is alimony and therefore modifiable in a
subsequent action. See id.In In re Marriage of Harvey, 393 N.W.2d 312, 314 (Iowa 1986), a wife
appealed a modification to a decree granting her “periodic payments” where she
also retained almost all of the marital assets. Our supreme court found the award
was terminable upon her marriage because, although she argued it was a property
division, the payments appeared to have been intended for the wife’s future
support and were intended to terminate upon her death. Harvey, 393 N.W.2d at
314. So, the court concluded, they were properly characterized as modifiable
alimony payments.
In the present case, the decree includes no explicit language indicating the
“alimony” award was meant to equalize the property division. The decree fully
incorporates the parties’ stipulation. The stipulation does not express the award
labeled “alimony” serves a different purpose than traditional spousal support. The
only indication to that effect is the provision that the alimony term “shall not be
modified.” The award terminates upon Stacy reaching the age of sixty-five, her
10
death, or her remarriage; Scott is not mandated to pay alimony for any minimum
period, such as the ten years in Knipfer. See 114 N.W.2d at 144. So, the
cumulative award is not a fixed and determinable sum. See id. In awarding
alimony, the district court properly considers the distribution of marital property.
Iowa Code § 598.21A(1)(c). Alimony can balance an otherwise inequitable division
of property. See In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa 2008). But
that does not render the alimony a part of the property division.
Here, the marital estate was not equally divided, and Stacy maintains the
larger alimony award was meant to equalize the property division. At the
modification hearing, she testified she purposely walked away from the marriage
with only $1.3 million of the almost $6 million estate explaining, “I helped build that
operation [the Herum farm]. I did not want to see it be sold, split up. Scott’s
family—I’m not that type of person. And I knew my son. I wanted something for
him.”4 According to Stacy, she and Scott agreed there would be no changes to
the decree once final, and she took the lesser property allocation based on that
agreement. She testified she was not aware the alimony award could be modified,
and would not have agreed to the stipulation had she known. When asked about
her understanding of the combination of the property settlement and alimony, she
said, “Scott and I made that agreement. We sat down together to avoid sitting
here in court like we are today. We had built that operation together. We had
4
The record shows Stacy contributed significantly to the growth of the farm from the
roughly 300 acres Scott owned at their marriage to around 6700 acres at the time of their
dissolution. Scott testified it was the sixteenth largest farm in the state of Iowa. Stacy left
her job as a bank loan officer after their marriage to work full time on the farm operation.
The couple’s son, D.H., is active in Future Farmers of America and intends to farm. Both
parents anticipate D.H. taking over the Herum farm in the future.
11
three wonderful kids. And we wanted to keep the court out of it. And I accepted
that to keep him going.” Stacy entered the stipulation knowing she would be
receiving less than half the value of the marital estate.5 Moreover, Stacy has paid
taxes on the alimony, and Scott has deducted it from his earnings.
Under these circumstances, we conclude the “alimony” awarded in this case
is properly understood as an alimony award, not part of a property settlement or in
lieu of property. It appears from the stipulation and Stacy’s testimony that the court
awarded the amount of alimony to compensate for Stacy’s smaller share of the
property division. But, it is neither permanent nor for a fixed and determinable
sum; terminates in the same way as an alimony award; and does not cumulatively
result in an equitable division of marital assets. No language in the decree signals
the alimony award should be read as part of the property settlement. No evidence
in the record from the original dissolution proceedings shows either party intended
alimony to be awarded in lieu of marital property. How the court distributes the
marital property is an important consideration in determining the award of alimony.
See Iowa Code § 598.21A. Stacy admits she received an inflated alimony award
to make up for taking less of the property. Contrary to the district court’s analysis,
the circumstances presented here do not show the alimony award should be
treated as part of the property division.
We must now decide how to address the modification petition. Generally,
provisions for spousal support are final unless “there is a substantial change in
5
Even if Stacy received the same alimony payments until she reached the age of sixty-
five, she would receive only around $780,000 (26 years times $2500 per month) in addition
to the property settlement, which does not approach half the marital assets at the time of
the dissolution.
12
circumstances.” In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014); see
also Iowa Code § 598.21C(1). The decree provides the alimony amount and
duration are not modifiable, and Stacy also testified she and Scott agreed the
provisions were not subject to modification to protect their children and to avoid
the “public display” caused by this type of litigation. Neither party directly appealed
the decree, nor do they contend in this appeal that the modification provisions are
not enforceable.6 See In re Marriage of Phares, 500 N.W.2d 76, 79 (Iowa Ct. App.
1993) (explaining “parties may contract and dissolution courts can provide alimony
is not modifiable”). Thus, we are left with the decree terms as written. Because
the decree does not permit modification of the alimony except upon the termination
events described, we deny the petition to modify alimony. Scott contends alimony
should be terminated because Stacy is cohabiting with her boyfriend, but
cohabitation is not one of the terminating events in the parties’ stipulation.
B. Modification of physical care7
Scott next contends the district court erred in not modifying the decree to
grant him physical care8 of the children due to “the emotional harm to the children
done by their mother.” Scott asserts Stacy has alienated the children from him by
cohabiting with her boyfriend, Dennis, disallowing summer visits, and turning off
the youngest child’s cellphone. He asserts he offers the children superior care.
6
Scott testified at the modification hearing he would never have agreed to a stipulation
creating a non-modifiable alimony term, but he plainly did.
7
Because the court modified the custody arrangement for Scott to have physical care of
D.H., the following section addresses the two younger children only.
8
It is unclear if Scott is seeking sole or joint physical care. Scott told the district court he
wanted “half of the time” with the children. On appeal he asks for “more contact” with the
children but also references “placement” with him.
13
A party seeking modification of a decree’s physical care provision has two
hurdles: (1) prove by a preponderance of the evidence a substantial change in
circumstances occurred after the decree was entered and (2) prove a superior
ability to minister to the needs of the children. In re Marriage of Harris, 877 N.W.2d
434, 440 (Iowa 2016). Non-exclusive lists of factors for determining what physical
care arrangement is in the children’s best interests are found in Iowa Code
section 598.41(3) and in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974). Once a physical care arrangement is in place, the party seeking to modify
it has a heightened burden which we disturb for only the most cogent reasons.
See Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).
We focus on Scott’s claim a substantial change in circumstances occurred
since the decree was entered, namely, Stacy has alienated the children from him.
Scott alleges Stacy is cohabiting with Dennis9 and “has turned the children into
witnesses/advocates for her position through such influence”; Stacy did not allow
their eleven-year-old son Et.H. to have a cellphone or attend summer visitation
with Scott; and the children needed counseling because of Stacy’s behavior.
In response, Stacy testified Et.H. did not visit Scott for several months of
the preceding summer because Et.H. had an eye injury, needed medication every
couple hours, and knew he could depend on Stacy to administer it.10 Regular
visitation resumed after that time. Stacy explained she disconnected Et.H.’s phone
because he did not use it and could not get good service at Scott’s house. The
9
The eldest child, D.H., expressed concerns about Stacy’s relationship with her boyfriend,
and his concerns formed a partial basis for moving to his father’s house.
10
Et.H.’s counselor confirmed Et.H. gave this reason for not visiting Scott.
14
district court found, and we agree, Stacy was not cohabiting with Dennis. She
acknowledged they were in a serious relationship, spent time in each other’s
homes, and assisted each other with farm chores on their respective farms. But
they maintained separated residences, separate finances, and were not engaged
in a business partnership. Scott faults Stacy for exposing the children to Dennis
but admits he has dated several women since the divorce and invited a woman
friend to join him and D.H. for lunch.
The record does not support Scott’s assertions Stacy has acted to
undermine his relationship with Et.H. and Em.H. Stacy communicates with Scott
by email about the children’s grades and Et.H.’s additional tutoring needs. Scott
rarely, if ever, responds. When Et.H. expressed reluctance to spend time with
Scott, Stacy sought out a counselor to work with their son. The counselor testified
Et.H. initially demonstrated adjustment difficulties going between his parents’
houses and experienced behavioral and emotional challenges. But Et.H. did not
tell the counselor Stacy discouraged him from seeing Scott.
Stacy testified Dennis has a good relationship with the children. The
counselor said Et.H. talked about Dennis in very favorable terms and enjoyed
spending time with him. The counselor did not believe concerns about Dennis
precipitated the boy’s need for counseling. Stacy’s father, testifying for Scott,
described Et.H.’s relationship with Dennis as “awfully good” and the grandfather
had no concerns about Dennis interacting with Em.H. either. Stacy’s mother
provided substantially the same testimony.
Both parents report Em.H. is an excellent student and talented musician.
But Stacy testified Em.H. confronted her on multiple occasions about matters
15
related to the divorce she could only have heard from Scott. Scott admitted using
Em.H. as a go-between so he does not have to speak with Stacy. Stacy testified
Em.H. does not want to be placed in that position. Stacy also testified when the
children are with Scott, fifteen-year-old Em.H. is responsible for helping her
younger brother do his homework and get to bed because Scott is often gone.
We conclude Scott has not shown a substantial change in circumstances
caused by Stacy’s behavior. Et.H. and Em.H. have not expressed significant
concerns about Dennis. Scott theorized some difficulties the children might have
with Dennis but they do not comport with testimony from Stacy, the counselor, or
the grandparents. Stacy did not prevent Et.H. from attending his summer visit with
Scott; Et.H. chose to stay with his mother due to his eye injury. We find no credible
evidence showing the children have needed counseling solely because of Stacy’s
conduct or new relationship.
We also conclude Scott has not demonstrated he can provide superior care.
The record reflects he is less attentive to the children’s schooling, activities, and
needs than Stacy has been, even when Stacy has tried to keep him informed.
Scott testified he had attended Et.H.’s baseball practice the previous week, but
had not seen Em.H.’s band events in several months. He could not name the last
time he attended a parent-teacher conference. And he was not aware how many
days his children had missed school, though Stacy informed him of warning letters
about attendance sent by their schools. The parents rarely, if ever, communicate
regarding the children despite Stacy’s efforts. Scott appears less able to support
the children’s relationship with their mother, while Stacy has been supportive of
16
their relationship with Scott. We see no reason to disturb the physical care
arrangement.
C. Child support
Scott contends the court erred in not complying with the child support
guidelines without explanation, in not finding a change in circumstances justified
modification, and in not awarding a retroactive reduction in his support obligation.
1. Child support guidelines and change of circumstances
Scott contends the district court erred in not modifying the child support in
compliance with Iowa Court Rule 9.11, the Child Support Guidelines, and without
making the required special findings. In support, he argues there has been a
substantial change in circumstances to justify modification. We read Scott’s
argument as challenging both the initial decree’s child support order and,
separately, urging modification based on a change of circumstances, specifically
D.H. moving in with him and a reduction in his farm income.
a. Rule 9.11 compliance
Scott complains the modification court did not apply Rule 9.11.11 But if Scott
wanted to challenge the departure from the guidelines, he should have done so in
a challenge of the original decree, not in the modification action. Neither party
appealed the decree or moved to enlarge or amend it. Scott did not complain
11
Rule 9.11 instructs the court “shall not vary from the amount of child support that would
result from application of the guidelines without a written finding that the guidelines would
be unjust or inappropriate” considering a number of criteria, including that “[s]ubstantial
injustice would result to the payor, payee, or child(ren).”
17
about the lack of compliance with Rule 9.11 until his 1.904(2) motion following the
modification decision. The court overruled the motion.12
We also believe the decree court complied with Rule 9.11 by finding, “[T]he
child support guidelines are inappropriate and unjust under the special
circumstances of this case for the reason that substantial injustice would result to
[Stacy] or the child, or both[.]” The court declined to depart from the parties’
agreed-upon amount of child support in consideration of the terms of the
agreement, “including, but not limited to, the property and alimony provisions; the
indemnification provisions; in anticipation that Scott’s income will increase in future
years and his acceptance of the associated risk that it may not increase” and other
provisions. “[P]arents cannot lightly contract away or otherwise modify child
support obligations.” In re Marriage of Mihm, 842 N.W.2d 378, 384 (Iowa 2014).
But here the decree court considered the disparate division of the marital property
in awarding elevated alimony and child support, though departing from the child
support guidelines, and made the findings necessary to explain the departure, as
required under Rule 9.11. Similar to our holdings on alimony above, the district
court considered the smaller share of property Stacy took and balanced it with
higher alimony and child support awards.
b. Modification based on change of circumstances
Scott asserts a substantial change of circumstances justifies modification of
the original decree, specifically that D.H. moved in with him and his farm income
declined. The district court granted Scott physical care of D.H. and reduced the
12
The court granted the motion to the extent of correcting one typographical error.
18
child support obligation by operation of the decree provisions. So we address
Scott’s argument regarding a reduction in his farm income. A provision of the 2012
decree makes the child support order non-modifiable for seven years. The decree
court explained this was justified by the above-discussed considerations as well
as the parties’ desire “to provide stability and reach a lasting agreement that avoids
the costs of litigation[.]” Again, in light of the disparate property division, the parties
agreed and the court approved, a term of non-modifiable child support that neither
party challenged. On appeal, neither party asserts this term is not enforceable.
We have in the past enforced a provision for permanent non-modifiable child
support. See In re Marriage of Pulley, No. 05-1576, 2006 WL 2872493, at *2-4
(Iowa Ct. App. Oct. 11, 2006).
But, we do not need to decide if the term is enforceable because we find
the argument was not properly raised. In each of Scott’s modification and
amended modification filings as well as his post-hearing brief, he requests a
change in the child support obligation only pursuant to his request for a change in
the physical care arrangement. The court granted him physical care of D.H. and
changed the support obligation accordingly, but declined to change the physical
care arrangement for the two younger children. The district court did not address
any change in the child support obligation based on his reduced income because
it was raised before it only in the context of challenging alimony. “It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal.” Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Scott did not argue his child support
19
obligation should be reduced based on his reduced farm income until the appeal.
The issue is not properly before us.
2. Retroactive child support
Scott next contends the time it took to litigate the modification prejudiced
him financially and caused him to overpay $22,400 in child support. Scott notes
the parties stipulated in May 2016 that he should have physical care of D.H., and
D.H. turned eighteen in 2016 and graduated from high school May 21, 2017—all
before the court’s June 2017 decision.
The modification court did transfer physical care of D.H. to Scott and reduce
Scott’s child support obligation, as of the date of the decision. But Iowa case law
prevents courts from imposing a retroactive reduction in child support before
modification is ordered. In re Marriage of Barker, 600 N.W.2d 321, 323–24 (Iowa
1999); see also In re Marriage of Smith, No. 14-1684, 2015 WL 5965212, at *9–10
(Iowa Ct. App. Oct. 14, 2015) (striking down an order to pay retroactive child
support and declining to overturn Barker when party argued the rule “is no longer
fair and equitable with the current judicial delays”); In re Marriage of Doubek, No.
12-0628, 2013 WL 104962, at *2 (Iowa Ct. App. Jan. 9, 2013) (striking down an
order for retroactive reimbursement of child support received); In re Marriage of
Wattonville, No. 11-1148, 2012 WL 1439241, at *6 (Iowa Ct. App. Apr. 25, 2012)
(remanding to the district court due to calculation error and declining to order
reimbursement of child support through the recalculation decision).
The decree provides Scott’s child support obligation for three children
continues until the eldest child reaches the age of eighteen or graduates from high
school, whichever occurs last. When only two children are subject to child support,
20
Scott’s obligation drops to $2200 per month. When the district court issued its
modification ruling, it noted D.H. had turned eighteen and graduated from high
school the previous month. It changed the child support obligation going forward
to $2200 per month. The change could not be made retroactive. We find no error
in the court’s ruling.13
D. Rule 22.10 violation
Next, Scott complains the belated ruling violated Iowa Court Rule 22.10 for
reporting of pending cases and constituted an abuse of discretion for which this
court should reverse and remand the decision. Scott filed his petition to modify in
February 2015; the court set the matter for hearing in June and September 2016,
and issued its decision in June 2017.14 At the end of the modification hearings,
the court informed the parties it would take some time to complete the ruling due
to the court’s trial schedule, pending priority matters on the court’s docket, and the
complexity of the legal issues.
Our supreme court has established a goal of resolving submitted issues
within sixty days. To create some accountability, Iowa Court Rule 22.10 instructs
judges to report monthly to the supreme court any matters “taken under
advisement in any case for longer than 60 days, together with an explanation for
the reasons for the delay and an expected date of decision.” Scott presents no
evidence the district court did not comply with this rule.
13
Scott asks us to apply the analysis of In re Marriage of Wade, 780 N.W.2d 563, (Iowa
Ct. App. 2010). But that case involved an order to retroactively increase child support,
which is permitted. Wade, 780 N.W.2d at 566–67; see Barker, 600 N.W.2d at 323–24.
14
There is a substantial pre-hearing record in this case including several trial continuances
requested by both parties, numerous depositions, and extensive discovery disputes. The
last of three hearings in the modification was on September 27, 2016. The court also gave
the parties until October 31 to file post-hearing briefs. Scott filed his brief on October 31.
21
In Poole v. Hawkeye Area Community Action Program, 666 N.W.2d 560,
562 (Iowa 2003), the district court took sixteen months to rule on a relatively simple
motion for new trial. Our supreme court found no abuse of discretion and no
reason to either remand for a new trial or review that civil case de novo. Poole,
666 N.W.2d at 562. Here, the record included three days of trial and several issues
of considerable complexity. The district court’s ruling runs to almost thirty pages.
We acknowledge there was a substantial interval between submission and ruling,
but we do not find cause for reversal or remand.
E. Attorney fees
Both parties ask for attorney fees on appeal. An award of attorney fees is
not a matter of right, but rests in our discretion based on the parties’ relative
abilities to pay and the merits of the appeal. In re Marriage of Buttrey, 538 N.W.2d
322, 324 (Iowa Ct. App. 1995). Stacy largely prevailed under our review, and Scott
should contribute toward her cost in defending against the appeal. We direct Scott
to pay $4000 toward Stacy’s appellate attorney fees. Costs of the appeal are taxed
to Scott.
AFFRIMED.