In re the Marriage of Rife ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0679
Filed April 1, 2020
IN RE THE MARRIAGE OF BLAKE ALLEN RIFE
AND JENNIFER HELEN RIFE,
Upon the Petition of
BLAKE ALLEN RIFE,
Petitioner-Appellant,
And Concerning
JENNIFER HELEN RIFE, n/k/a JENNIFER HELEN CRANE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, Nancy L.
Whittenburg, Judge.
Blake Rife appeals the district court’s order overruling his petition for
modification of certain provisions of his modified decree of dissolution.
AFFIRMED.
Steven R. Postolka (until withdrawal) and Stephen F. Avery of Cornwall,
Avery, Bjornstad & Scott, Spencer, for appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.
This appeals arises out of Blake Rife’s petition to modify the decree
dissolving his marriage to Jennifer Rife, now known as Jennifer Crane. Blake
asserts the district court erred in failing to modify the parties’ visitation arrangement
as requested, as well as the court’s calculation of Blake’s child support obligation.
Blake also contends the district court erred in ordering him to pay Jennifer’s trial
attorney fees. Upon our de novo review, we affirm the ruling and award appellate
attorney fees to Jennifer.
I. Background Facts and Proceedings.
Blake and Jennifer married in 2011, and two children were born to the
marriage. The marriage was dissolved in April 2016. The court approved the
parties’ stipulation and agreement and incorporated its terms into the decree.
In the stipulation and agreement, the parties agreed to joint legal custody of
their children, with the children placed in Jennifer’s physical care. Blake was
granted visitation, and a detailed schedule was set out in their agreement. Blake
agreed to pay Jennifer monthly child support of $918.
In July 2016, Blake petitioned to modify visitation, and in January 2017, the
parties filed a stipulation modifying their decree’s visitation provisions. To
accommodate their preschooler’s schedule, Blake’s weekly daytime visitation was
moved from Wednesday to Friday. The parties also modified other visitation
provisions, such as the holiday visitation schedule. The district court approved the
parties’ stipulation and modified the original stipulation accordingly.
At the end of July 2018, Blake filed a second petition seeking more
modification. Blake asserted there had been a material and substantial change in
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circumstances; both of the parties’ children were now attending school on a full-
time basis, conflicting with his midweek visitation. Blake stated he had sought to
work out a new schedule with Jennifer but she refused to make any changes.
The parties’ claims over visitation, child support, and trial attorney fees were
tried to the court in January 2019. The district court overruled Blake’s petition to
modify the parties’ prior visitation schedule. The court sustained Blake’s petition
for modification of his child support obligation, finding it should be reduced to $763
per month. The court also sustained Blake’s petition related to his obligation of
paying seventy-one percent of the children’s medical expenses not covered by
insurance after Jennifer paid the first $250 of each child’s uncovered expenses,
lowering the percentage to fifty-one percent. But the court ordered Blake to pay
monthly cash medical support of $250 to Jennifer. The court also required Blake
pay $3500 to Jennifer for her trial attorney fees.
Blake now appeals.
II. Scope and Standards of Review.
Actions for modification of child support, legal custody, and visitation orders
lie in equity; our review de novo. See In re Marriage of McKenzie, 709 N.W.2d
528, 531 (Iowa 2006); Nicolou v. Clements, 615 N.W.2d 905, 906 (Iowa Ct. App.
1994). “We examine the entire record and decide anew the legal and factual
issues properly presented and preserved for our review.” In re Marriage of Wade,
780 N.W.2d 563, 565-66 (Iowa Ct. App. 2010). We give weight to but are not
bound by the district court’s findings of fact, and we will only disturb the district
court’s ruling if it has failed to do equity. See In re Marriage of Mihm, 842 N.W.2d
378, 381 (Iowa 2014).
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III. Discussion.
On appeal, Blake contends the district court erred in denying his petition for
modification of visitation. He also challenges the district court’s calculation of his
child support and cash medical support obligations. Finally, he asserts the court
erred in awarding Jennifer trial attorney fees. Jennifer requests an award of
appellate attorney fees.
A. Modification of Visitation.
A parent seeking a change of custody bears the heavy burden of
establishing “by a preponderance of evidence that conditions since the decree was
entered have so materially and substantially changed that the [child]’s best
interests make it expedient to make the requested change.” In re Marriage of
Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (citation omitted). But “[a] different, less
demanding burden applies when a parent is seeking to change a visitation
provision in a dissolution decree.” In re Marriage of Brown, 778 N.W.2d 47, 51
(Iowa Ct. App. 2009). In that situation, the parent need only show “there has been
a material change in circumstances since the decree and that the requested
change in visitation is in the best interests of the [child].” Id. at 51–52 (citation
omitted); see also Smith v. Smith, 142 N.W.2d 421, 422 (Iowa 1966) (“It seems
readily apparent a much more extensive change of conditions would be required
to support a change of custody than would be necessary to justify a change of
visitation rights.”).
Blake asserts there has been a significant change in circumstances since
the prior modification. Blake notes that both children are now attending school.
He also states one of the children “has begun exhibiting behavioral issues, which
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could be significantly lessened by spending additional time with his father.” Finally,
Blake claims “Jennifer’s refusal to come to terms with Blake on issues concerning
visitation suggest that a more stable visitation plan is desirable, and would alleviate
or prevent future conflicts.”
Upon our de novo review of the record, we agree with the district court’s
conclusion—Blake failed to show there had been a significant change in
circumstances since the first modification. The first modification was made to
accommodate the older child’s school schedule. Full-time schooling for both
children was on the horizon and within the parties’ contemplation when the first
modification was made. This is not a material change of circumstance.
Blake’s other two asserted “changes” are unsupported by record evidence.
There is no evidence in the record to support Blake’s self-serving opinion that the
child’s behavioral issues—if there are any—would be cured by additional time with
Blake. Similarly, Blake’s suggestion that Jennifer’s actions evidence a change in
circumstance to support modifying the visitation schedule is simply that—a
suggestion. Both Blake and Jennifer agreed to the first modified schedule, and the
district court accepted the schedule. There is no claim Jennifer has violated the
schedule. While we encourage parents to work together to make accommodations
as necessary, that does not require Jennifer to accept Blake’s requested
modifications.
Upon our review, we agree with the district court that Blake failed to show
the material change of circumstances necessary to support modification of the
existing visiting schedule agreed upon by the parties. We therefore find no error
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in the district court’s ruling overruling Blake’s petition to modify the visitation
schedule and affirm the issue.
B. Child Support.
“In Iowa, child support is calculated using the child support guidelines.” In
re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa 2018); see Iowa Code
§ 598.21B (2018); Iowa Ct. R. 9.2. “The purpose of the guidelines is to provide for
the best interests of the children by recognizing the duty of both parents to provide
adequate support for their children in proportion to their respective incomes.” Iowa
Ct. R. 9.3(1).
“To compute the guideline amount of child support,” the district court must
first compute the adjusted net monthly income of each parent. Iowa Ct. R. 9.14.
That amount is ascertained by first determining each parent’s gross monthly
income and then subtracting specified taxes and deductions. See Iowa Ct. R.
9.14(1). Gross monthly income is the “reasonably expected income from all
sources.” Iowa Ct. R. 9.5(1). “Gross income from self-employment is self-
employment gross income less reasonable business expenses.” Iowa Ct. R.
9.5(1)(c).
“A court must determine the parent’s monthly income from the most reliable
evidence presented.” In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991).
“All income that is not anomalous, uncertain, or speculative should be included
when determining a party’s child support obligations.” In re Marriage of Nelson,
570 N.W.2d 103, 105 (Iowa 1997). “[T]he burden is on the recipient of the income
to establish that it should be excluded from gross income as uncertain and
speculative.” Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005).
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Child-support obligations can be modified if “there is a substantial change
in circumstances.” Iowa Code § 598.21C(1). To determine whether a substantial
change in circumstances has occurred over the child-support obligation, the court
must consider factors, including “changes in a party’s employment or income.”
Mihm, 842 N.W.2d at 381. Additionally, a “substantial change of circumstances
exists when the court order for child support varies by ten percent or more from
the amount which would be due pursuant to the most current child support
guidelines established pursuant to section 598.21B.” Iowa Code § 598.21C(2)(a).
The court must also “examine the factors in conjunction with several ‘other well-
established principles governing modification.’” In re Marriage of Michael, 839
N.W.2d 630, 636 (Iowa 2013) (quoting In re Marriage of McCurnin, 681 N.W.2d
322, 329 (Iowa 2004)). These principles include “[t]he party seeking
modification . . . bears the burden of establishing by a preponderance of the
evidence the substantial change in circumstances,” the “substantial change
justifying a modification must be permanent or continuous rather than temporary
in nature,” and “the substantial change must not have been within the
contemplation of the district court when the decree was entered.” Id.On appeal, Blake asserts the district court miscalculated his income when
it included in its income determination that Blake received $3000 per month from
his parents. Blake contends the court misunderstood his testimony and that
income was already accounted for on his business tax returns. Jennifer points out
that Blake’s own testimony stated he received that amount from his parents
monthly, and she maintains the court’s overall determination that Blake’s gross
income was $60,000 per year was within the range of evidence presented at trial.
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Upon our de novo review of the record, we find the district court’s gross-income
determination to be within the range of permissible evidence. Cf. In re Marriage of
Keener, 728 N.W.2d 188, 194 (Iowa 2007) (“A trial court’s valuation will not be
disturbed when it is within the range of evidence.”).
Blake testified he owned a small share of his parents’ business, Rife Farms,
LLC. Blake testified his parents paid him “for the labor of the improvements
that . . . they make to the farm.” Asked how much of his income was paid by his
parents in 2018, Blake answered, “I get $3000—they paid me $3000 or so a month.
But some of that has to go into my day-to-day operations too on the farm.” Blake
testified that amount was accounted for in the farm business’s “custom hire”
income. Blake maintained his only income was that he paid himself out of the
business account of about $2000 per month. He provided nothing to support that
figure except his own testimony and an “Agricultural Balance Sheet” from his bank
for his business, “Farm Solutions Inc.” The balance sheet reported $848,653 in
assets and $402,764 in total liabilities, leaving a total equity of $445,889. He had
not filed his 2018 taxes yet, so he provided no other current income documents.
He agreed he reported a total business loss of $35,215 in 2017, but he could not
say where on the profit or loss schedules his salary was reported.
The district court explained how it determined Blake’s income:
When the divorce was filed, Blake was farming and teaching school,
but by the time the divorce was finalized he had transitioned to full-
time farming. At trial, Blake testified that he pays himself $2000 per
month salary from his farming operation, receives $3000 a month
from his parents to manage Rife Farms LLC, receives $400 a month
from the Evans Stock Farm for management services, however, that
farm was recently sold and he does not expect to continue to receive
that income, and he also receives income from custom baling for
neighbors but did not specify the amount of that income. On this
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evidence alone, Blake earns in excess of $5000 gross income per
month (no testimony identified the amount of income Blake earns
from custom baling so the court is unable to include that income in
the court’s computation of Blake’s gross annual income) or nearly
$2000 more in gross income then he earned in 2016 when the
decree was entered. On this evidence, the court finds that Blake’s
gross annual earnings are $60,000.
There is no dispute of a substantial change of circumstances in Blake’s
income. But Blake’s trial evidence about his gross income was scant. Only his
self-serving testimony supported his claim that he paid himself a low monthly
salary amount from his business. Blake’s personal and business tax returns do
not specifically account for a paid salary from the business. He did not provide
something like a bank statement showing a regular deposit of money from his farm
account to his personal account as a salary. He did not have his accountant
explain his tax filing and accounting. Without this, there is insufficient evidence to
support Blake’s claim he was only earning $30,000 per year.
Gross income from self-employment is self-employment gross income less
reasonable business expenses. See Iowa Ct. R. 9.5(1)(c). Blake’s farm business,
despite the report of overall losses, was making some profits. Many of his
expenses, while valid for tax purposes, were paid to his parents’ business. He
rented farmland, his house, and equipment, among other things, from his parents’
business. They in turn paid his business for some of his labor. Ultimately, there
was money coming in and going out, and the amount Blake kept as a salary or
other income is unclear. Given Blake’s inability to explain how his salary is
accounted for within his business’s tax returns, we cannot say the court’s inclusion
of $3000 per month for an amount Blake testified his parents were paying to him
and the business was in error. The burden was on Blake to establish that amount
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was a reasonable business expense. Because nothing can be separated out and
Blake provided no evidence to do so, we find the district court’s determination that
Blake’s annual gross income was at least $60,000 was well within the range of
evidence. So we will not disturb it or the modified child-support award and affirm
on this issue.
C. Trial Attorney Fees.
Blake challenges the district court’s award of attorney fees in favor of
Jennifer in the amount of $3500. “We review this award for an abuse of discretion.”
See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). The “abuse of
discretion” standard is our most deferential standard of review. See State v. Roby,
897 N.W.2d 127, 137 (Iowa 2017). “Trial courts have considerable discretion in
awarding attorney fees.” In re Marriage of Witten, 672 N.W.2d 768, 784 (Iowa
2003) (quoting In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994)). The
fees must be fair and reasonable and whether they should be awarded depends
on the respective abilities of the parties to pay. See id.Upon our de novo review, we cannot say the district court abused its
discretion in its attorney fee award. The court considered the requisite factors. We
therefore affirm the award of attorney fees.
D. Appellate Attorney Fees.
Finally, Jennifer requested an award of appellate attorney fees of $11,880.
An award of appellate attorney fees is not a matter of right but rests within this
court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App.
2007). In determining whether to award attorney fees, we consider the needs of
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the party making the request, the ability of the other party to pay, and whether the
party making the request had to defend the district court’s decision on appeal. Id.In consideration of these factors, we award appellate attorney fees to
Jennifer of $5000. Any costs on appeal are assessed to Blake.
IV. Conclusion.
Upon our de novo review of the record, we agree with the district court that
Blake failed to prove there was a material change in circumstances to warrant
modification of the parties’ previously modified visitation schedule. We also find
the district court’s determination of Blake’s annual gross income was within the
range of permissible evidence presented at trial, and we will therefore not disturb
it. We find no abuse in discretion by the district court’s award of trial attorney fees
to Jennifer. Finally, we find Blake should pay to Jennifer a $5000 award of
appellate attorney’s fees. We affirm on all issues.
AFFIRMED.