In re the Marriage of Nelson ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1610
Filed October 20, 2021
IN RE THE MARRIAGE OF JULIE M. NELSON
AND MICHAEL D. NELSON
Upon the Petition of
JULIE M. NELSON,
Petitioner-Appellee,
And Concerning
MICHAEL D. NELSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James C. Ellefson,
Judge.
A father of three appeals an order denying his application to modify child
support and ordering him to pay orthodontia costs for the youngest child.
AFFIRMED.
Amanda Hassid of Pasley & Singer Law Firm, L.L.P., Ames, for appellant.
Jessica Shannon of Baer Law Office, Des Moines, for appellee.
Considered by Tabor, P.J., Greer, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
TABOR, Presiding Judge.
A 2005 divorce decree ordered Michael (Mick) Nelson to pay $873.14 per
month to support his three children: L.N., M.N., and S.N. The decree also directed
the support “shall be recalculated” when each child was no longer eligible based
on “the then current Child Support Guidelines.” Mick contends that “step-down
provision is “self-executing.” And now that all three children have graduated from
high school, he claims his child support obligation should end. Mick appeals the
district court’s denial of a retroactive reduction. He also contests an order that he
pay a portion of uncovered orthodontia expenses for S.N., the youngest child.
Because the district court properly handled the child support and medical support
issues, we affirm.
I. Facts and Prior Proceedings
Mick and Julie Nelson married in 1993, had three children, and divorced in
2005. The divorce decree placed physical care of the children with Julie and
ordered Mick to pay support for each child until the age of majority or high school
graduation.1 The oldest, L.N., graduated in 2015; M.N. in 2017; and S.N. in 2020.
Although the decree anticipated a change in Mick’s child support obligation as
each child left home, he did not seek recalculation until 2020.
That year, Mick filed a pro se request to end his obligation because the
children no longer qualified for support. Julie answered and counterclaimed,
asserting that she initiated a collection action because Mick “had missed or made
1 Along with the decree, the court issued an order to Mick’s employer requiring
income withholding for the child support obligation. The court updated the income-
withholding order when Mick’s employer changed in 2008, 2011, and 2018.
3
incomplete child support payments.” She argued his obligation should not be
terminated until he paid his back support of over $16,000.2 Julie also applied for
a rule to show cause why Mick should not be held in contempt. In an
accompanying affidavit, she alleged that Mick owed her $3144.90 for S.N.’s
orthodontics treatment.
Through counsel, Mick answered Julie’s counterclaim. In that filing, he
alleged that his monthly support obligation dropped to $819.63 in 2015, and to
$602.91 in 2017. He based those calculations on the parties’ 2005 incomes. In
June 2020, the court ordered Mick’s support obligation for S.N. to terminate. The
court clarified:
There is an additional set of issues revolving around whether
support for the first two children should have terminated
automatically or not, and, if the amount of support should have been
changed, which set of guidelines should have been used and what
incomes should have been used.
....
. . . Determination of whether there was a back child support
obligation and, if so, what the amount of that back support obligation
is presents both legal and factual issues that are too complex to be
submitted in the limited amount of time that the court has on a court
service day. That issue must be set for trial.
After that order, Julie filed her own clarification:
2 In 2018, Mick—who had moved to California—petitioned to modify the decree to
change then sixteen-year-old S.N.’s physical care from Julie to him. But he
voluntarily dismissed that modification petition in 2019 before the court considered
it. Julie testified that during mediation for that modification action they ran the
numbers through the child support guidelines and “determined that he would
actually have to pay more with both our incomes.” But she did not pursue an
increase in support because she “didn’t have the money to start that course of
action.” In her June 2020 brief resisting the termination of child support, Julie
asserted that Mick’s salary had doubled since the decree was entered in 2005. As
proof, she attached a 2018 statement from the University of California, San Diego,
showing his gross annual earnings as $91,250. The 2005 decree showed Mick’s
gross annual earnings as $43,000.
4
[H]ad [Mick] sought a modification of child support when each
of the prior children became ineligible, the guidelines at that time,
along with the parties income in 2015 and 2017, would have been
used to determine child support, which might have been higher or
lower than the current amount of $873.14. Unfortunately, that was
never done.
The district court set trial for October 2020. Two months ahead of that, Mick
launched discovery. In response, Julie filed a notice stating that she had served
her answers by email. About two weeks before trial, Mick moved to strike all
objections to his discovery requests, to deem all matters admitted, to compel
discovery responses, and for summary judgment on the contempt action. The
motion complained that Julie’s unsigned email responses violated Iowa Rule of
Civil Procedure 1.422(1). Julie resisted those requests. The court considered the
discovery fight at a brief hearing on October 19. Afterward, the court denied Mick’s
motions to strike all objections, to deem all matters admitted, and to compel, but
reserved specific discovery matters for the October 22 trial.3 At that trial, Mick
and Julie were the only witnesses. Mick testified that he believed he had overpaid
$1,219.62 based on the “step-downs” as the children graduated from high school.
He alleged that when L.N. graduated in 2015, he and Julie agreed that his support
payment would be “around 700 and something dollars for two children.” But he
agreed the billed amount remained $873.14 as stated in the decree. Julie testified
that Mick owed a balance of $16,243.69 on his child support. She also asserted
that Mick should reimburse his share of S.N.’s orthodontic treatment.
3 On the eve of trial, Mick filed a brief resisting the contempt action. Mick
acknowledged he was sometimes in arrears in his child support. But he claimed,
“When his older children became ineligible to receive child support, . . . he
continued paying the same amount as before in order to close the gap between
what he owed and what he had paid.”
5
The district court ruled that Mick owed $16,243.69 in delinquent child
support. It rejected his argument that the child-support reduction provision in the
decree was “self-executing.” The court also found Mick liable for $2,501.40 in
uncovered medical expenses for S.N.’s orthodontia. Offsetting those sums, Julie
owed Mick $3,689.45 in missed payments toward student loan debt. So the court
ordered Mick to pay Julie a net amount of $15,055.64. The court declined to hold
Mick in contempt for failure to timely pay his child support, instead requiring income
withholding to recoup the back support.
Mick appeals, raising three issues: child support, medical support, and
alleged discovery violations.4 He also seeks appellate attorney fees. Julie defends
the district court ruling and likewise asks for appellate attorney fees.
II. Standard of Review
Because a proceeding to modify or implement a dissolution decree—
subsequent to its entry—is tried in equity, our review is de novo. In re Marriage of
Pals, 714 N.W.2d 644, 646 (Iowa 2006). Under that review, “we examine the entire
record and adjudicate anew the rights on the issues properly presented.” In re
4 We address only two of those three issues. We decline to reach Mick’s challenge
to Julie’s alleged discovery violations because he did not preserve error. True, in
its October 21, 2020 ruling, the court rejected remedies that Mick promoted for the
alleged violations. But the court reserved the crux of the discovery dispute for trial.
For instance, the court held Julie’s “failure to produce an item of evidence on the
basis of an objection that had no merit may be the basis for a ruling against [her]
on specific matters at trial.” In discussing Mick’s request for admissions, the court
ruled that Mick could “raise this contention with respect to specific issues at trial.”
But because Mick did not object to Julie’s trial exhibits that were the subject of the
discovery dispute, he waived error. See UE Loc. 893/IUP v. State, 928 N.W.2d
51, 61 (Iowa 2019) (explaining “a party receiving a preliminary ruling that does not
unequivocally decide an issue must do more to preserve the issue for appellate
review”).
6
Marriage of Maher, 596 N.W.2d 561, 564 (Iowa 1999). The district court has
reasonable discretion in determining whether modification is warranted, and we
will not disturb the exercise of that discretion unless there is a failure to do equity.
Id. at 565.
III. Analysis
A. Child Support
Mick frames his first issue like this: “Do child support amounts ordered in
family law decrees automatically step down once the child becomes ineligible for
support pursuant to Iowa Code section[s] 598.1 and 598.21 [(2020)]? (Are step-
downs ‘self-executing?’)” To counter, Julie argues their divorce decree did not
“provide the necessary specificity to be self-executing.”
We start with the language of the decree. Based on the parents’ net monthly
incomes in 2005,5 the decree ordered Mick to pay $873.14 per month to support
the three children. The decree also provided “that when [Mick’s] obligation for child
support reduces to two children and then to one child, the child support amount
shall be recalculated based on the then current Child Support Guidelines.”
Is this provision self-executing?6 In other words, did Mick’s child support
obligation decrease when L.N. graduated from high school in 2015, and decrease
again when M.N. graduated in 2017, without him taking any action to recalculate
5 Mick’s was $2951.81, and Julie’s was $2153.89.
6 For a definition of self-executing, both the district court and Julie looked to
Scheffers v. Scheffers, which explained: “A self-executing order has been defined
by this court as one which requires no act of a ministerial or other officer to put it
into effect.” 44 N.W.2d 676, 679 (Iowa 1950) (internal quotation marks omitted).
Also helpful, an instrument is “self-executing” if it is “effective immediately without
the need of any type of implementing action.” Self-Executing, Black’s Law
Dictionary (11th ed. 2019).
7
the amount or have the amount recalculated? Mick insists the answer is yes. He
argues when a child becomes ineligible for support under the definitions in Iowa
Code section 598.1, “any award of support must cease.” He relies on In re
Bisenius, 573 N.W.2d 258, 261 (Iowa 1998), and In re Swanson, No. 05-1953,
2006 WL 3313896, at *2 (Iowa Ct. App. Nov. 16, 2006).
Disagreeing, Julie contends both cases are inapposite. Why? Because in
Swanson, the decree established the support amount due when the father was no
longer required to pay for one of the two children. 2006 WL 3313896, at *1 n.1.
No recalculation required. Similarly, in Bisenius, the order provided that support
for all children be based on a percentage of the father’s income and set out the
applicable percent based on the number of children qualifying for support. 573
N.W.2d at 259–60. Again, no recalculation necessary. In those cases, “self-
executing” referred to the conditions triggering the child’s ineligibility for support.
Id. at 261; Swanson, 2006 WL 3313896, at *2. When those conditions were
satisfied, the obligation changed—without any implementing action—into a new
and predetermined obligation. By contrast, under the Nelsons’ decree, when the
conditions triggering a child support change occurred—a child turned eighteen or
graduated from high school—someone, either the parties or the court, had to
recalculate the amount based on updated child support guidelines unknown at the
time of the decree.7
7 Under Iowa law, child support guidelines must be updated at least every four
years. Iowa Code § 598.21B(1)(a); see also 42 U.S.C. § 667(a). The Iowa child
support guidelines changed several times as the parents’ young children grew up
and aged out of child support eligibility.
8
And Mick admits as much in his trial brief, “Without dispute, Julie or Mick
had the opportunity to modify the support order at any time. Whether for strategic
reasons or lack of interest, neither did so.” Mick added: “At this late date, it is not
possible to calculate [the support amount] according to the parties’ income.”
Despite that admission, Mick argues “it is certain that [he] owes less than [Julie]
argues, and less than the district court ordered. What is unknown is whether [Mick]
owes anything at all.” He places the burden of proof on Julie because she brought
the contempt action. From there, he asserts she “put on no evidence” to show he
owes support in arrears “after accounting for the step-downs.” As his bottom line,
he urges that her claim must be dismissed.8
On the burden question, Julie again disagrees. She contends Mick, as the
obligor, had “an affirmative duty to seek formal modification of the support order”
if he believed his obligation had changed. Cf. In re Marriage of Belger, 654 N.W.2d
902, 909 (Iowa 2002) (discussing offset for social security dependency benefits).
We agree. The obligor parent cannot on their own reduce child support payments
(or determine the customary payment makes up for arears) without requesting
court approval. See id. (“This rule is consistent with the public policy that courts,
not the parties, should fix the proper amount of child support.”). And once Mick
sought modification, his request was one dimensional. He asked to stop paying
support because the youngest child was no longer eligible. Julie resisted, arguing
his obligation should not end until he had paid in full. In that procedural posture,
Mick had the burden to show he did not owe back support.
8Mick’s argument overlooks the fact that the district court refused to hold him in
contempt. So we are not reviewing the contempt ruling.
9
Still, Mick defends his self-help measure. He compares his situation to the
obligor, Leonard, in In re Marriage of Youngblut, who independently calculated his
lower child support obligation after the older of his two children graduated from
high school—despite an ambiguous provision in the decree. No. 05-0807, 2006
WL 469786, at *2 (Iowa Ct. App. Mar. 1, 2006). A few months after Leonard started
paying less support, he sought a declaratory judgment to verify the reduced
amount was appropriate. Id. In arguing the step-downs in his own decree were
self-executing, Mick reasons: “The actual calculations may be done promptly, as
in Youngblut, or they may be done years later.”
Problem is, years later, Mick did not do “actual calculations” of the amounts
he owed under the language of the decree. He also did not ask for a declaratory
judgment to interpret the meaning of the phrase “shall be recalculated” based on
then current child support guidelines. In fact, Mick argued a belated calculation
using the parties’ accurate incomes and guidelines from 2015 and 2017 was now
impossible. Accepting that as true, we have no way to know if Mick indeed
overpaid. Perhaps using his higher income, which is double his 2005 income, he
may have owed the same or more child support for two and then one child. And
his professed belief that his overpayments went to back support is unavailing.
“Generally speaking, a father is not entitled to credit against arrearages for
overpayments in support money which he made to the mother.” See Pals, 714
N.W.2d at 650 (citing Robert A. Brazener, Right to Credit on Accrued Support
Payments for Time Child is in Father’s Custody or for Other Voluntary
Expenditures, 47 A.L.R.3d 1031, 1037 (1973)).
10
For purposes of fixing the level of payment for two children and then one
child, the support language in the 2005 decree was not self-executing.
Recalculating an equitable amount required knowledge of the parties’ incomes in
2015 and 2017 and access to the updated child support guidelines. See In re
Marriage of Mullen-Funderburk, 696 N.W.2d 607, 611 (Iowa 2005) (holding that
“[w]here a decree has not established a fixed level of payment,” the modified
amount “should be based on both the facts and the law in existence when the
determination is made”). Granted, Mick would have been able to show a change
in circumstances. See In re Marriage of Kupferschmidt, 705 N.W.2d 327, 332
(Iowa Ct. App. 2005) (“Clearly when a child support award is based on two
qualifying children and one no longer qualifies, there has been a substantial
change in circumstances.”); see also Iowa Code § 598.21C(1). But he also needed
to take some action to implement the recalculation. Because he did not do so, we
find the district court properly calculated the amount of back support he owed to
Julie.
B. Medical Support
We next consider the district court’s determination that under the terms of
the decree, Mick was indebted to Julie for $2501.40 in uncovered medical
expenses. See generally Iowa Ct. R. 9.12(5) (the Iowa Child Support Guidelines
regarding medical support). The Nelsons’ decree ordered Julie to pay the first
$250 per child per year in uncovered medical expenses. The parents were to split
uncovered expenses beyond that initial $250 in proportion to their incomes, with
Mick paying fifty-five percent and Julie paying forty-five percent. The decree
11
defined those expenses as including reasonably necessary orthodontia. 9 The
decree also required the obligee to “present a receipt” within thirty days of incurring
the expense.
Mick contends Julie was not entitled to reimbursements for expenses she
paid for S.N.’s orthodontia.10 He gives two reasons: (1) Julie did not timely provide
him a receipt11 and (2) the court’s calculations are not supported by the record. He
questions how much of the expense was incurred after S.N. graduated from high
school.
In defending the order, Julie rejects those reasons. On timeliness, she
points to an exhibit showing her attorney contacted Mick’s attorney on January 8,
2019, providing the orthodontic payment plan and giving options for paying his
share.12 Julie’s payments into that plan started eleven days later. She also
9 We do not read Mick’s brief as challenging whether the orthodontia work was
medically necessary. And one parent may recover funds for reasonable and
necessary medical expenses even if the other parent has not consented to the
child’s treatment in advance. See In re Marriage of Demmer, No. 99-0665, 2000
WL 378265, at *2 (Iowa Ct. App. Apr. 12, 2000) (rejecting father’s claim “he should
not be responsible for half the cost of orthodontic braces for the children because
he was neither consulted before authorization of such treatment nor was it made
clear to him whether braces constitute necessary medical and dental care”).
10 Julie contests error preservation on this issue, pointing out that Mick cites no
legal authority to back his position. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure
to cite authority in support of an issue may be deemed waiver of that issue.”). We
agree his lack of authority hinders our review, but opt to overlook his waiver and
address the merits. See In re Est. of Boman, No. 16-0110, 2017 WL 512493, at
*14 n.22 (Iowa Ct. App. Feb. 8, 2017).
11 Much of Mick’s argument focuses on what he perceives as discovery violations
by Julie. Those claims do not excuse him from paying his share of the uncovered
medical expenses.
12 That information did not surprise Mick, who testified that L.N. told him around
Christmas 2018 that she would be getting braces.
12
emphasizes that all of S.N.’s orthodontia expenses were incurred before June
2020.
A party may collect unpaid medical support—once a court has determined
a dollar amount—by the same remedies available for the collection of traditional
child support. Iowa Code § 598.22(7); In re Marriage of Okland, 699 N.W.2d 260,
267–68 (Iowa 2005). The obligee must prove they are entitled to the requested
amount of support. Id. at 268. In our de novo review, we find Julie provided timely
notice of the uncovered medical expenses to Mick in compliance with the decree.
And substantial evidence supported the reimbursement amount ordered by the
court. So we affirm the district court’s order.
C. Appellate Attorney Fees
Both Julie and Mick request appellate attorney fees. Mick requests $4000.
Julie requests $13,260 for the cost of defending the appeal. An award of appellate
attorney fees is not a matter of right but rests within our discretion. In re Marriage
of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). In determining 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. See id. Considering all the relevant
factors, and especially the information in the record that Mick is earning about twice
as much as Julie, we grant Julie’s request in part and order Mick to pay $8000 of
her appellate attorney fees.
Costs are assessed to Mick.
AFFIRMED.