IN RE THE MARRIAGE OF JOEY D. COULTER AND ADELE M. COULTER Upon the Petition of JOEY D. COULTER, Petitioner-Appellant, And Concerning ADELE M. COULTER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-791 / 07-0815
Filed November 15, 2007
IN RE THE MARRIAGE OF JOEY D. COULTER AND ADELE M. COULTER
Upon the Petition of
JOEY D. COULTER,
Petitioner-Appellant,
And Concerning
ADELE M. COULTER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John G. Linn,
Judge.
Joey D. Coulter appeals after the district court refused to modify the child
support provisions of the 1997 decree dissolving his marriage to Adele M.
Coulter. AFFIRMED.
Thomas D. Marion of Marion Law Office, Keokuk, for appellant.
Marlis J. Robberts of Robberts Law Office, Burlington, for appellee.
Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.
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SACKETT, C.J.
Joey D. Coulter appeals after the district court refused to modify the child
support provisions of the 1997 decree dissolving his marriage to Adele M.
Coulter. He contends the district court (1) should have reduced his child support
because of a reduction in his income and an increase in Adele’s income, and (2)
failed modify his obligation to pay medical expenses of his children not covered
by medical insurance. Adele contends (1) the district court was correct in not
modifying the child support and (2) error was not preserved on Joey’s claim the
medical expense provision should have been modified.
She also asks for
appellate attorney fees.
I.
SCOPE OF REVIEW.
We review de novo. Iowa R. App. P. 6.4. De novo review requires us to
review the record anew. In re Marriage of Salmon, 519 N.W.2d 94, 95 (Iowa Ct.
App. 1994). Though they do not bind us, we give weight to the district court's
credibility determinations. Iowa R. App. P. 6.14(6)(g).
II.
BACKGROUND.
The dissolution decree approved the parties’ stipulation. There the parties
had stipulated, among other things, that (1) Joey had an annual income of
$34,000, (2) Adele had an annual income of $17,000, (3) Adele would have
primary physical care of their daughters born in 1993 and 1995, and (4) Joey
would pay child support of $758.34 a month. In addition it was stipulated that
Adele would carry health insurance on the children, Joey would pay one half of
the premium, and the parties would share equally all medical costs not covered
by insurance.
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In June of 2006 Joey filed this application for modification contending that
his income had decreased, Adele’s had increased, and his support obligations
should be decreased. After hearing evidence the district court in part found:
Joey points to his tax returns in an effort to convince the Court that
he is unsuccessful and slowly going broke. On the other hand he is
paying his bills and leading a moderately comfortable lifestyle. Of
critical importance to the Court is the fact Joey does not seem to
spend his full time doing anything. He dabbles in real estate, his
convenience store business, and his apartment rental business.
When money is short, he borrows from the bank, his credit cards,
and he has spent down his 401(k). His choosing not to work full
time at a particular job is voluntary and self-inflicted. The Court
concludes Joey has earning capacity in the range of $37,000 per
year and upward to $51,000 per year. The fact that Joey is not
devoting 100 percent of his time and talent to actually earning this
amount is no reason to modify downward his child support
obligation. The Court concludes, at minimum, Joey’s child support
obligation should be based on earning capacity in the amount of
$37,000 a year rather than $20,000 a year. The court makes a
finding that not using Joey’s earning capacity would be inequitable
because: (1) substantial injustice would otherwise result to Adele
and the children, and (2) adjustments are necessary to provide for
the needs of the children and to do justice between Joey and
Adele. The Court concludes Joey’s child support obligation shall be
calculated using an annual income of $37,000.
The district court then calculated Joey’s child support on the basis of its
findings determining that Joey should pay $694.23 which was $64.11 less than
the $758.34 he was ordered to pay under the original decree. Finding the current
calculation to be less than a ten percent variation from the original support order,
the court found Joey was not entitled to a modification of his support obligation.
The district court further determined that it would inequitable to reduce Joey’s
child support obligation and denied the request for modification.
awarded Adele $2000 in attorney fees.
The court
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III.
MODIFICATION OF CHILD SUPPORT.
Pursuant to Iowa Code section 598.21C (Supp. 2005), we are to modify
support orders if there is a substantial change in the parties' circumstances. One
of the factors we may evaluate is “changes in the employment, earning capacity,
income or resources of a party.” Iowa Code § 598.21C(1)(a). The Code further
defines “substantial change” to be “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.” Iowa Code § 598.21C(2). A parent may
not rely on a claim of decreased income to obtain a modification of a support
order if the parent’s reduced earning capacity and inability to pay support is selfinflicted or voluntary. Therefore, parents who reduce their income through an
improper intent to deprive their children of support or in reckless disregard for
their children's well-being are not entitled to a commensurate reduction in child
support payments.
In re Marriage of Swan, 526 N.W.2d 320, 323-24 (Iowa
1995). Joey has failed to make the required showing for a modification. We
affirm the district court’s denial of a modification of Joey’s child support
obligation.
IV.
MEDICAL EXPENSES.
Joey contends his medical expense obligation should be modified. Adele
contends that error was not preserved on Joey’s issue that the medical pay
provisions should be modified.
We agree.
The issue was not raised or
addressed by the district court. Matters not raised in the trial court cannot be
considered on appeal. In re Marriage of Okonkwo, 525 N.W.2d 870, 872 (Iowa
Ct. App. 1994).
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V.
ATTORNEY FEES.
Adele has requested appellate attorney fees. We award her $1000 in
appellate attorney fees. Costs on appeal are taxed to Joey.
AFFIRMED.
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