Upon the Petition of KIMBERLY S. PLUNKETT, n /k/a KIMBERLY S. AUS , Petitioner - Appellant/Cross - Appellee, And Concerning PAUL M. PLUNKETT, Respondent - Appellee/Cross - Appellant,
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IN THE COURT OF APPEALS OF IOWA
No. 8-700 / 07-0526
Filed November 13, 2008
Upon the Petition of
KIMBERLY S. PLUNKETT, n/k/a
KIMBERLY S. AUS,
Petitioner-Appellant/Cross-Appellee,
And Concerning
PAUL M. PLUNKETT,
Respondent-Appellee/Cross-Appellant,
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Amanda
Potterfield, Judge.
Kimberly Aus appeals a district court order modifying her ex-husband’s
child support obligation.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Lillian Lyons Davis of Kennedy, Cruise, Frey & Geiner, L.L.P., Iowa City,
for appellant.
Paul M. Plunkett, Fort Riley, Kansas, pro se.
Considered by Mahan, P.J., and Vaitheswaran and Doyle, JJ. Potterfield,
J. takes no part.
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VAITHESWARAN, J.
Kimberly Aus appeals a district court order modifying her ex-husband’s
child support obligation. We affirm in part, reverse in part and remand.
I. Background Facts and Proceedings
Kimberly and Paul Plunkett married in 1989 and divorced in 1997. Paul
was ordered to pay Kimberly $106.51 per month in child support for their two
minor children. Four years later, Paul’s child support obligation was increased to
$577.04.
In 2005, Kimberly again applied to modify Paul’s child support obligation.1
She sought an order requiring Paul to pay $1123.10 per month, with a due date
beginning in March 2006.
The district court found Kimberly’s earning capacity was $15.00 per hour
for fifty weeks per year and imputed $30,000.00 of gross annual income to her.
In calculating her net monthly income, the court did not grant Kimberly a qualified
additional dependent deduction for the three children she had with her current
husband.
The court found Paul’s gross annual income was $51,664.56. That sum
included untaxed income of $15,927.36 for housing and food allowances he
received as a member of the military. The court also found Paul did not pay Iowa
state income tax. For purposes of calculating his net monthly income, the court
nonetheless granted him a deduction for Iowa income tax liability.
1
The dissolution decree and 2001 modification action were filed in Ohio. Kimberly
subsequently moved to Iowa. Ohio relinquished jurisdiction and Iowa accepted
jurisdiction of the 2005 action.
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The court ordered Paul to pay $1057.00 per month in child support,
effective November 1, 2006, and ruled that the child-support obligation would
decrease to $695 per month in the event his housing allowance was no longer
included in his salary.
On appeal, Kimberly contends (1) she is entitled to a greater amount of
child support than the district court ordered, (2) the modified child-support
obligation should have been made retroactive to an earlier date, (3) a judgment
in her favor should have been entered for child support she claims she did not
receive, and (4) this court should grant her request for appellate attorney fees.
II. Analysis
A. Amount of Child Support.
Kimberly first alleges the child support should have been set at $1167.74
per month instead of $1057 per month. She cites the following errors in the
court’s determination: (1) the absence of findings of fact to support a variation
from the guidelines; (2) Paul’s receipt of a deduction for Iowa income tax liability;
(3) the court’s failure to grant her a qualified additional dependent deduction; (4)
the court’s imputation of $30,000 in income to her; and (5) the court’s decision to
reduce Paul’s child-support obligation if he stopped receiving military allowances.
1. Variation From the Guidelines. Kimberly argues the district
court varied from the guidelines without making findings to support a variance.
See Iowa Court Rule 9.11.
On our de novo review of the record, we are
convinced the district court applied the guidelines as written, adopting Paul’s
proposed guidelines worksheet which determined his child-support obligation to
be $1056.91. Finding no variance from the guidelines, we reject this argument.
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2. Tax. Kimberly next contends the district court should not have
allowed Paul a deduction for state income tax liability. We agree. The record
reflects that Paul did not pay Iowa income taxes. He testified he was in the
military, presently lived in Kansas, and claimed Florida as his state of residence
because Florida has no state income tax. He agreed that the deduction for state
income tax liability shown on his proposed child-support guidelines worksheet
was $1587.21 and should have been added back to arrive at his net income.
Based on this evidence and the court’s finding that Paul “does not pay state
income tax, because he designated his residence as the state of Florida, which
has no state income tax,” we reverse the child-support calculation and remand
for re-calculation of Paul’s obligation without the deduction for state income tax
liability.
3.
Qualified Dependents.
Kimberly also contends the court
should have granted her a deduction for the three children she has with her
current husband.
Iowa Court Rule 9.5(10) allows a deduction for qualified additional
dependents.
The qualified additional dependent deduction is considered a
deduction for any child for whom parental responsibility has been established as
defined in the guidelines.
Iowa Admin. Code r. 441-99.2(8).
The deduction
applies to “dependents of the custodial or noncustodial father or mother, whether
in or out of the parent’s home.” Id. at 99.2(8)(a)(1). The deduction may be used
in an upward modification. Id. at 99.2(8)(a)(3).
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There is no dispute that Kimberly was legally responsible for the three
children. See Iowa Court Rule 9.7(4). Under Iowa Court Rule 9.8, the monthly
deduction for the three additional children would be $279.
Iowa Court R.
9.8(1)(c). The rule specifies that, after a threshold determination of eligibility is
made, “the deduction shall be used in the determination of the net monthly
income.”
Iowa Court R. 9.8(2); State v. Klawonn, 609 N.W.2d 515, 521–22
(2000) (stating use of the word “shall” by the legislature indicates a duty).
As it is undisputed that Kimberly has three children from her present
marriage and is legally responsible for them, we reverse the denial of Kimberly’s
request for a qualified additional dependent deduction and remand for a
recalculation of her net monthly income with that deduction and a recalculation of
Paul’s child-support obligation.
4. Kimberly’s Income. Kimberly next contends the district court
should not have imputed to her an annual income of $30,000.00.
When a parent voluntarily reduces his or her income or decides not to
work, it may be appropriate for the court to consider earning capacity rather than
actual earnings when applying the child support guideline. In re Marriage of
Nelson, 570 N.W.2d 103, 106 (Iowa 1997).
Kimberly testified that prior to moving to Iowa, she held a part-time job
earning $15.00 per hour. At the time of trial, she was not earning wages.
The district court imputed income which was the equivalent of a full-time
position earning $15.00 per hour for fifty weeks of the year. Although there is no
indication that Kimberly worked full-time when she was previously earning $15.00
per hour, we cannot conclude the court’s decision to impute full-time income to
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her amounted to a failure to do equity. The court found that Kimberly expressed
an intent to return to the workforce after her youngest child began kindergarten.
The record also indicates that Kimberly earned $12,500.00 of annual income
several years earlier. It was not unreasonable for the court to conclude she
could earn more with the passage of time.
5. Housing Allowance. Paul works as a military police officer in
the United States Army. He testified that at the time of the modification hearing
he was earning base pay of $35,000.00 plus a housing allowance.
As noted, the district court provided for the contingency that Paul would
lose his housing allowance.
The court stated, “[i]n the event Mr. Plunkett’s
housing allowance is no longer included in his salary, and he so documents the
change to Ms. Aus, Mr. Plunkett’s child support will reduce to $695 . . . .”
Kimberly filed a motion to enlarge and amend, seeking the deletion of this portion
of the decree.
The district court denied the motion.
On appeal, Kimberly
contends there was insufficient evidence to make this reduction. We agree.
In Morrison v. Morrison, 208 Iowa 1384, 1388, 227 N.W. 330, 332 (1929),
our supreme court said:
Our duty is to determine this case upon the changed
circumstances and conditions alleged in the petition and shown by
the evidence to exist at this time, and not speculate as to the future.
Should the future bring about changed conditions and
circumstances, the same statute which the appellant now seeks to
invoke in his behalf may then be used for relief.
Paul testified that the housing allowance is offered to soldiers who do not live in
government-issued barracks. For the two years he was stationed in Kansas,
Paul received a housing allowance. Paul stated he was hoping to remain in
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Kansas but he might be reassigned to Germany. He testified that if he was
stationed in Germany, he might get military housing or he might receive a
housing allowance. Because a reassignment had yet to occur at the time of trial,
he could not say with certainty which option would be exercised. For this reason,
we strike that portion of the decree that provides for this contingency.
B.
Effective Date for Modification.
Kimberly contends the district court should have made the modification
effective as of March 2006 rather than November 2006.
Iowa Code section 598.21 (2005) states that child support “may be
retroactively modified only from the date the notice of the pending petition for
modification is served on the opposing party.” The trial court has discretion in
determining whether the modification should be made retroactive. In re Marriage
of Keopke, 483 N.W.2d 612, 614 (Iowa Ct. App. 1992). While the district court
could have selected an earlier effective date, the court was not required to do so.
Given the abuse of discretion standard under which we review this aspect of the
court’s ruling, we affirm this part of the ruling.
C.
April 2006 Payment.
Kimberly contends the district court should have granted judgment in her
favor in the amount of $577.04 plus interest. This represents the amount of child
support due in April 2006, which she claims was not paid. On this issue the
district court found:
Mr. Plunkett is current on his support, with the possible exception of
support for April 2006, the transition month when his child-support
obligation transferred from Ohio to Iowa. He paid that month’s
support, but received a reimbursement from the State of Ohio. Ms.
Aus testified that she did not receive that month’s payment. The
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court finds the record is insufficient to determine whether Mr.
Plunkett still owes Ms. Aus for that month’s child support.
Kimberly indeed testified she did not receive her April 2006 child support
payment.
Paul believed he was current on his payments but did not refute
Kimberly’s testimony of non-receipt. The payment record for Paul’s child support
payments through the State of Iowa shows his payment was credited on April 20,
2006, and processed on May 1, 2006, indicating it was for May 2006 rather than
April 2006. Based on this record, we conclude Kimberly did not receive a child
support payment for April 2006 and is entitled to judgment in her favor for the
stated amount.
D.
Appellate Attorney Fees.
Finally, Kimberly requests an award of her appellate attorney fees. An
award is not a matter of right, but rests within the discretion of the court. In re
Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We order Paul to pay
$1000.00 towards Kimberly’s appellate attorney fees.
III. Disposition
We affirm all aspects of the district court’s modification decree except the
following.
We reverse the child-support determination and remand for a
recalculation of child support with the inclusion of the qualified additional
dependent deduction for three children in calculating Kimberly’s net monthly
income and the exclusion of the deduction for state income tax liability in
calculating Paul’s net monthly income.
We strike the portion of the decree
addressing the possible loss of Paul’s housing allowance. We reverse the district
court’s denial of a judgment in favor of Kimberly for the April 2006 child support
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payment and remand for entry of judgment for $577.04, plus interest. We order
Paul to pay Kimberly $1000.00 toward her appellate attorney fee bill. Costs are
taxed equally to both parties.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED
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