IN RE THE MARRIAGE OF ANDREW R. ETNYRE AND JENNIFER A. ETNYRE Upon the Petition of ANDREW R. ETNYRE, Petitioner-Appellant, And Concerning JENNIFER A. ETNYRE, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-849 / 06-0432
Filed November 30, 2006
IN RE THE MARRIAGE OF ANDREW R. ETNYRE AND JENNIFER A.
ETNYRE
Upon the Petition of
ANDREW R. ETNYRE,
Petitioner-Appellant,
And Concerning
JENNIFER A. ETNYRE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Dale B. Hagen,
Judge.
Andrew R. Etnyre appeals following the district court’s denial of his
application to modify his child support obligation established in the decree
dissolving his marriage to Jennifer A. Etnyre. REVERSED AND REMANDED.
Chad A. Boehlje of Boehlje Law Firm, P.L.C., Pella, for appellant.
Joel D. Yates of Clements, Pothoven, Stravers & Yates, Oskaloosa, for
appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
SACKETT, C.J.
Andrew R. Etnyre appeals following the district court’s denial of his
application to modify his child support obligation established in the 2003 decree
dissolving his marriage to Jennifer A. Etnyre. Andrew contends (1) a reduction in
his earning capacity supported a reduction in his child support obligation and (2)
the district court was not correct when it found he had an obligation to seek
employment out of state. We reverse and remand.
I. Scope of Review. “Our scope of review of a child support modification
action is de novo.” In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998).
Although we give weight to the findings of fact made by the district court,
especially as to the credibility of witnesses, we are not bound by those findings.
Id. at 741. “We recognize that the district court ‘has reasonable discretion in
determining whether modification is warranted and that discretion will not be
disturbed on appeal unless there is a failure to do equity.’” Id.
II. Prior proceedings.
The parties have three minor children born in
1995, 1997, and 2000. The dissolution decree provided they should have joint
legal custody and Jennifer should have primary physical care.
Andrew was
provided reasonable and liberal visitation rights. He was ordered to pay child
support of $1,326.83 a month beginning in March of 2003 until October of 2005
when the support was increased to $1,509.57 1 a month to be paid until a child no
longer qualified for support, at which time the support for the remaining children
was to be established by the child support guidelines then in effect. In addition,
Andrew was to maintain hospital and medical insurance on the children and
1
In the original decree Andrew was also ordered to pay alimony of $1,750 until
September of 2005, which was the time the youngest child began kindergarten.
3
provision was made for the parties’ allocation of expenses not covered by the
insurance. 2
At the time of the decree Andrew was working in Auburn, Nebraska at an
annual salary of $95,000. Jennifer was not working outside the home, but in
fixing child support, the district court determined she could earn $35,000 a year.
In May of 2005 Andrew filed an application for modification that led to this
appeal. At the hearing on the modification in February of 2006 the facts were
basically undisputed. They showed that following the dissolution Andrew found a
job at Fisher Controls in Marshalltown, Iowa, paying the same $95,000 a year he
earned in Nebraska. One reason for taking the job was it was closer to Pella
where Jennifer and the children lived. The job at Fisher lasted until July of 2004
when the position was eliminated. Andrew, who had remarried and has another
child, sought similar employment elsewhere in Iowa. He was offered a job in
West Des Moines at a salary of $65,000, which he rejected because it would
require substantial travel.
Failing to find satisfactory employment Andrew
opened his own business as an owner/manager of a Quiznos franchise in
Pleasant Hill, Iowa. Since the business opened Andrew has spent considerable
time working onsite, doing bookwork, hiring and firing help, and attending
Quiznos corporate meetings in the Chicago area. He testified that pursuant to
Quiznos corporate guidelines he set his initial annual salary at $27,300. He was
unable to draw a full salary in 2005 but expects an increase in profits as the
business becomes more established. He asked at trial that the district court
2
Jennifer appealed seeking increased alimony and Andrew cross-appealed seeking a
reduction in the alimony amount. This court affirmed. In re Marriage of Etnyre, No. 030591 (Iowa Ct. App. Dec. 24, 2003).
4
consider his annual income to be $27,300. He was current in his child support
but testified he had used resources to pay the support that were no longer
available to him.
Jennifer was then employed and her annual income was
$30,403.41.
The district court denied Andrew’s application for modification, finding
Andrew had not shown the changed circumstances are permanent and were not
contemplated at the time of the dissolution of the marriage. The district court
also found that Andrew had an obligation to support his children and to find and
accept employment outside of Iowa similar to the jobs he had that provided an
annual salary of $95,000.
III. Request for modification. Andrew contends the district court should
have modified his support obligation.
A dissolution court may modify child
support and alimony provisions of a dissolution decree when there has been “a
substantial change in circumstances.” Iowa Code § 598.21(8) (2005). “The party
seeking
modification
must
prove
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 relevant principles may 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.
5
Id. Among other things, a court, in addressing a modification of child support,
may also consider “changes in the employment, earning capacity, income or
resources of a party.” Iowa Code § 598.21(8).
Jennifer does not appear to dispute the fact that Andrew’s income from
Quiznos is substantially less than what he earned from prior employment. She
argues his support should not be decreased because he had a responsibility to
take a job similar to the one he lost in Marshalltown, and his salary, combined
with the salary of his current spouse, gives him a greater household income than
he had at the time of the dissolution while she is making $5,000 a year less than
the dissolution court found could be her expected earnings.
The courts have consistently held, as Jennifer argues, that a noncustodial
parent is not free to plan his or her future without regard to his or her obligation to
his child. See In re Marriage of McKenzie, 709 N.W.2d 528, 534 (Iowa 2006).
Furthermore, a primary factor to be considered in determining whether support
obligations should be modified and lowered is whether the obligor’s reduction in
income and earning capacity is the result of activity, which, although voluntary,
was done with an improper intent to deprive his or her dependents of support. Id.
at 533-34.
Equitable principles support preventing parents from gaining an
advantage by reducing their earning capacity and ability to pay support through
improper intent or reckless conduct. See In re Marriage of Foley, 501 N.W.2d
497, 500 (Iowa 1993). There is authority to deny a party’s claim of inability to pay
child support when that inability is self-inflicted or voluntary. Id.
However, modification is not denied in all cases when the noncustodial
parent’s income decreases. In the case In re Marriage of Walters, 575 N.W.2d
6
739, 741 (Iowa 1998), the court found that a noncustodial parent’s reduction in
income and earning capacity that was the result of his voluntarily criminal activity
was not done with an improper intent to deprive his children of support. Similar
circumstances have also allowed for modification. See In re Marriage of Foley,
501 N.W.2d 497, 500 (Iowa 1993) (finding that an obligor’s reduction in income
due to termination of employment for insubordination was not voluntary or selfinflicted); Boquette v. Boquette, 215 Iowa 990, 992, 247 N.W. 255, 256 (1933)
(determining an obligor’s demotion with resulting lower salary justified reduction
of support obligation); Nicolls v. Nicolls, 211 Iowa 1193, 1197, 235 N.W. 288, 289
(1931) (finding the discharge from employment and inability to obtain a job with
comparable pay justified reduction of support obligation); In re Marriage of Blum,
526 N.W.2d 164, 166 (Iowa Ct. App. 1994), (finding where the noncustodial
parent lost his job in Harlan, Iowa, and refused to move to Denison to take a
higher paying job as he wanted to stay in Harlan where his children lived was not
considered a self-inflicted or a voluntary reduction in salary); In re Marriage of
Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991) (finding an honorable
discharge from military and concomitant loss of military pay for failure to comply
with weight limits was not voluntary or self-inflicted); In re Marriage of Fidone,
462 N.W.2d 710, 712, (Iowa Ct. App. 1990) (holding a noncustodial parent’s
refusal to accept relocation as an alternative to discharge did not constitute a
self-inflicted reduction in salary for purposes of determining whether child support
provisions of divorce decree should be modified; where relocation would involve
move of 1,200 miles, there was a possibility of further layoffs at new location, and
he wanted to remain close to his family).
7
Following this line of cases it would be difficult to find that Andrew reduced
his income with an improper intent or because of reckless conduct. He left a job
in Nebraska for a job in Marshalltown paying the same annual salary because he
wanted to be closer to his children. He lost his job in Marshalltown through no
fault of his own, unlike the noncustodial parent in McKenzie, 709 N.W.2d at 524,
who quit his job.
Andrew contacted a head hunter and sought similar
employment limiting his search to jobs in Iowa that did not involve extensive
travel. He was unable to find such a job, although he did find one in West Des
Moines that paid $30,000 a year less than he had been making. Andrew turned
it down and made a decision to open a Quiznos, knowing the company
suggested he initially take less than $28,000 in salary. Andrew is working hard in
the job and hopes it will be more successful in the future. However, there is no
evidence that the business will net him $95,000 a year in the near future. While
we realize a decision to reduce Andrew’s support obligation will impact the
parties’ children, we must base our decision on reality rather than an unattainable
utopia. Walters, 575 N.W. 2d at 741. A business that is providing Andrew with a
salary of less than $28,000 a year is not likely to provide him with an income of
$95,000 in the immediate future.
At Andrew’s current income he cannot afford to pay the child support
ordered. We recognize his current wife has an annual salary of $75,000. We do
consider the remarriage and possible support Andrew may receive from his wife.
Iowa Code § 598.21(8)(h). Yet while his new wife has no obligation to support
Andrew and Jennifer’s children, it is proper to consider Andrew’s overall financial
8
condition in fixing the amount he should pay. Page v. Page, 219 N.W.2d 556,
558 (Iowa 1974).
We are inclined to disagree with the district court that Andrew has an
obligation to leave Iowa where he can enjoy a substantial relationship with his
children to find a job that pays him an annual salary of $95,000. See Fidone, 462
N.W.2d at 12; Blum, 526 N.W. 2d at 166.
Andrew has shown a substantial change of circumstances and his child
support obligation should be modified downward. However, we do not agree with
him that his income for child support purposes should be based on an annual
salary of $27,300. Andrew had an opportunity to take a job at an annual salary
of $65,000 and we believe under these circumstances it is equitable to impute
additional income to him for child support purposes or if his annual salary is used
to warrant an upward departure from the guidelines.
We reverse the finding that Andrew has not shown the required change in
circumstances and the finding that he has not shown the change to be
permanent. We remand to the district court to determine Andrew’s income in
accordance with this opinion, to determine the income for the purposes of
applying the child support guidelines, and to exercise its discretion applying the
guidelines. We award no appellate attorney fees. We do not retain jurisdiction.
REVERSED AND REMANDED.
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