IN THE COURT OF APPEALS OF IOWA
No. 4-027 / 13-0549
Filed April 16, 2014
IN RE THE MARRIAGE OF MELISSA S. SASSMAN
AND DOUGLAS W. SASSMAN
Upon the Petition of
MELISSA S. SASSMAN,
Petitioner-Appellee/Cross-Appellant,
And Concerning
DOUGLAS W. SASSMAN,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Richard G. Blane II,
Judge.
Douglas Sassman appeals the district court’s order modifying the
dissolution decree, and Melissa Sassman cross-appeals. AFFIRMED AS
MODIFIED AND REMANDED.
Andrew B. Howie of Hudson, Mallaney, Shindley & Anderson, P.C., West
Des Moines, for appellant.
Kodi A. Brotherson and Leslie Babich of Babich Goldman, P.C., Des
Moines, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2
VOGEL, P.J.
Douglas Sassman appeals the district court’s order modifying his and
Melissa Sassman’s 2010 dissolution decree. Melissa cross-appeals. Douglas
asserts the district court inequitably found no substantial change in
circumstances occurred such that his spousal support payments should be
lowered. Melissa claims the court should have ordered Douglas to pay one-half
of the children’s extracurricular, major clothing, and school expenses, and that
Douglas’s child support obligations should be recalculated so as to comply with
the current child support guidelines. We conclude the district court correctly
determined no substantial change in circumstances occurred such that Douglas’s
spousal support obligation should be lowered or that he should be ordered to pay
one-half of the children’s expenses. However, we find the child support
payments should be recalculated according to the current guidelines, as this
appeal was pending when the guidelines were amended. Therefore, we affirm
the district court’s order as modified and remand for the recalculation of
Douglas’s child support obligation.
I. Factual and Procedural Background
Douglas and Melissa were married for twenty-three years and have three
children together, two minor twins, born in 1999, and a now-adult son. The
dissolution decree was filed on September 15, 2010. Prior to trial, the parties
agreed Melissa would have physical care of the oldest son and Melissa and
Douglas would share physical care of the twins. Douglas was ordered to pay
$2256.53 each month in child support until support was no longer required for
their oldest son. The support was then recalculated pursuant to the guidelines
3
using the offset method, which resulted in Douglas’s child support obligation
being reduced to $1199.02 each month. Douglas was also ordered to pay
Melissa $1000 each month for fifteen years in spousal support, in addition to a
lump sum payment of $238,000 as a property settlement.
Melissa works full-time as a secretary for Blank Children’s Hospital,
earning $37,009 annually along with life, health, dental, and vision insurance
benefits, as well as a 401(k) plan. Douglas’s income is derived from his
business, Sassman Glass and Mirror, LLC. Douglas also owns two commercial
properties from which he receives rental income. In the original dissolution
decree, the court averaged Douglas’s income from 2006 to 2010 to arrive at his
income for purposes of calculating child support, and found the average to be
$222,881. However, the court noted Douglas’s income was declining due to the
burst of the housing bubble.1
Douglas filed the modification action to reduce his child and spousal
support payments on March 30, 2012, claiming his reduction in income
constituted a substantial change in circumstances. Melissa counterclaimed,
arguing Douglas should be ordered to pay one-half of the children’s
extracurricular expenses, major clothing purchases, and various school fees. A
hearing was held from January 8 through 10, 2013, and the court filed its order
on March 12, 2013. To determine Douglas’s salary for purposes of calculating
child support, the court used his average income from 2008 to 2012, less the
$12,000 he was required to pay for spousal support. The court found Douglas’s
1
The court in the dissolution decree estimated Douglas’s income for 2010 would be
$193,880, but according to Douglas’s tax returns, his adjusted gross income for 2010
was in fact $179,019, $14,861 lower than the court’s estimate.
4
income to be $181,166.48. In determining Melissa’s income, the court used her
annual salary, interest income from her investments, as well as the alimony
payments, and found her income to be $56,954.04. The court determined that,
because Douglas’s current child support obligation varied by more than ten
percent from his obligation under the then-current guidelines, he was entitled to a
downward modification of his child support payments. Consequently, the court
reduced the monthly payment to $800.24. The court further determined there
was no substantial change in circumstances warranting either a change in the
spousal support payments or a modification of the decree ordering Douglas to
pay one-half of the children’s extracurricular, major clothing, or school expenses.
Douglas appeals the court’s refusal to reduce or eliminate his spousal
support payments. Melissa cross-appeals, asserting the court should have
ordered Douglas to pay one-half of the children’s expenses and that Douglas’s
child support obligations should be recalculated so as to comply with the current
child support guidelines. She also seeks trial and appellate attorney fees as well
as expert witness fees.
II. Standard of Review
Review of a district court’s modification of a dissolution decree is de novo.
In re Marriage of Wessels, 542 N.W.2d 486, 490 (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 Spiegel, 553 N.W.2d 309, 319
(Iowa 1996). Our review of the grant or denial of attorney fees is for an abuse of
discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997).
5
III. Spousal Support
A dissolution decree may be modified if there has been “a substantial
change of circumstances.” Iowa Code § 598.21C (2011). The party seeking
modification must show the change in circumstances by a preponderance of the
evidence. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). The
following principles are to be considered when ruling on a petition for
modification:
(1) there must be a substantial and material change in the
circumstances occurring after the entry of the decree; (2) not every
change in circumstances is sufficient; (3) it must appear that
continued enforcement of the original decree would, as a result of
the changed conditions, result in positive wrong or injustice; (4) the
change in circumstances must be permanent or continuous rather
than temporary; (5) the change in financial conditions must be
substantial; and (6) the change in circumstances must not have
been within the contemplation of the trial court when the original
decree was entered.
Id. (internal citations omitted).
Douglas’s claim of changed circumstances is based on his lower earnings
since the original dissolution decree, which he correctly states was the basis for
lowering his child support obligation. The same rationale, he asserts, should
have justified a lowering or eliminating of his spousal support obligation.
However, comparing modification of child support to modification of spousal
support is not as simple as Douglas suggests. The district court correctly
determined his child support should be lowered because Douglas proved the
decretal child support order varied by ten percent from the then-current child
support guideline amount. With that proof established, the statute then states “a
substantial change of circumstances exists” for a modification to be ordered.
6
Iowa Code § 598.21C(2)(a). The same is not statutorily provided when the issue
is whether spousal support should be modified. See id. § 598.21C(1) (“[T]he
court may subsequently modify . . . spousal . . . support orders, when there is a
substantial change in circumstances.”) (emphasis added). Rather, a modification
of spousal support remains in the discretion of the modification court: “In passing
upon the propriety of a modification, the trial court exercises a wide discretion
which will be disturbed only in the event of an abuse thereof.” Lyons v. Lyons, 37
N.W.2d 309, 310 (Iowa 1949). Given Douglas’s still substantial income,
particularly when compared to Melissa’s, we agree with the district court that his
reduced salary alone does not support modification of the spousal support.
Moreover, his lower income was contemplated in the original dissolution
decree, considering the court stated:
[Douglas’s] business did very well at the height of the housing
boom, but has declined in the last two years. The court finds that
Douglas’s earnings in 2008, before the housing market’s bubble
burst, are not an accurate reflection of his current earnings or what
he is likely to earn in the near future.
Consequently, we agree with the district court that Douglas failed to establish a
substantial change in circumstances not contemplated by the decretal court
warranting a modification of the spousal support award.
IV. Child Support
As an initial matter, neither party contests the district court’s reduction of
the child support payments. Rather, Melissa, in her cross-appeal, argues that
the payments should be modified so as to comply with the current guidelines.
Iowa Rule of Court 9.1 states that the July 1, 2013 guidelines “shall apply
to cases pending July 1, 2013.” When new child support guidelines are adopted
7
while a case is pending on appeal, the child support should be recalculated in
compliance with the new guidelines. In re Marriage of Roberts, 545 N.W.2d 340,
343 n.2 (Iowa Ct. App. 1996). The district court set the appropriate amount in its
March 2013 order. However, because this appeal was pending as of July 1,
2013, Melissa is correct in her assertion that the child support payments should
be recalculated. Consequently, we remand to the district court so it may
recalculate Douglas’s child support obligation in compliance with the latest
guidelines.
Melissa also argues Douglas should be ordered to pay one-half of any
agreed upon children’s extracurricular activity fees, school related fees, school
lunches, and major items of clothing. However, the parties in this case have
shared physical care, which neither sought to change. They are thus presumed
to be capable of adequately communicating with each other to see that the
children’s expenses are shared equally, even after the payment of child support.
See In re Marriage of McDermott, 827 N.W.2d 671, 686 (Iowa 2013).
Douglas testified he did pay for clothing for the twins. On cross-
examination, he acknowledged that Melissa was paying for things such as school
lunches and school registration fees, because he had not “been asked to
participate in any of those.” Going forward, he agreed he would be willing to pay
for one-half of the extracurricular activity fees and expenses, school-related fees
and expenses, and purchases of major items of clothing on a “case by case”
basis. While Melissa requested the modification court to order these expenses
be paid one-half by Douglas, the court found no substantial change of
circumstances since the original decree regarding the financial obligations
8
associated with this shared care arrangement, and declined to modify to include
such an order. The court cited McDermott, which discussed the obligation of
shared-care parents to both cover the children’s expenses in addition to paying
the required child support. Id. at 685–86. However, the court noted the
McDermott case was an original dissolution decision, not, as here, a modification
that would require a substantial change of circumstances be shown before the
court would order the sharing of these expenses. We agree with the district
court’s reasoning that Melissa failed to prove a substantial change in
circumstances requiring a modification of the dissolution decree, and therefore
affirm.
V. Attorney Fees
Melissa further asserts Douglas should be ordered to pay two-thirds of her
$25,547.50 modification trial attorney fees, or $17,135. She also requests
Douglas pay two-thirds of her $2950 expert witness fees, or $1976.50. An award
of attorney fees rests in the sound discretion of the trial court and will not be
disturbed on appeal in the absence of an abuse of discretion. In re Marriage of
Romanelli, 570 N.W.2d at 765. Iowa Code section 598.36 grants the district
court authority in a modification action to award “attorney fees to the prevailing
party in an amount deemed reasonable by the court.” Expert fees are not
mentioned in the statute. Our supreme court affirmed the award of attorney fees
in In re Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa 2003), but neither
affirmed nor reversed the district court’s award of expert fees. Assuming that
expert fees could also be awarded as provided under Iowa Code section 622.72,
9
such discretion would also lie with the district court. See In re Marriage of
Rosenfeld, 668 N.W.2d at 849.
The controlling factor in awards of attorney fees is the ability to pay the
fees. In re Marriage of Muelhaupt, 439 N.W.2d 656, 663 (Iowa 1989). In
declining to award Melissa attorney fees, the district court stated: “Since the
Court has determined that Douglas prevailed on two issues and Melissa on only
one, even though Douglas has a superior ability to pay because of his income,
the Court determines that no attorney fees will be awarded.” In the post-trial
ruling, the court gave several reasons for denying Melissa’s request for expert
witness fees, including the fact it had already ordered Douglas to pay some fees
as a sanction for late compliance with discovery requests. Additionally, in
reviewing the request for expert witness fees, the court found the documentation
submitted did not contain a breakdown of additional time spent because of the
discovery delay, compared to the time spent on other tasks the expert performed.
Although noting that Iowa Code section 622.72 provides for the allowance of
expert witness fees with some limitations, the court concluded the expert fees, as
presented without a breakdown of time, should be borne by Melissa, given it was
her retained expert. We find no abuse of discretion in this assessment and
therefore affirm the court’s decision.
Melissa also requests “Douglas pay her reasonable appellate attorney
fees of $11,811.00.” A supporting affidavit has been filed by her attorney. In
considering such a request, we look to 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 trial court’s decision on appeal. In re
10
Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct. App. 1997). With these
considerations in mind and in light of the financial situations of both parties, we
decline to award Melissa appellate attorney fees.
Costs of this appeal assessed one-half to each party.
AFFIRMED AS MODIFIED AND REMANDED.