IN RE THE MARRIAGE OF KEVIN NOBIS AND MARY NOBIS Upon the Petition of KEVIN NOBIS, Petitioner-Appellee, And Concerning MARY NOBIS, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-061 / 08-1297
Filed April 8, 2009
IN RE THE MARRIAGE OF KEVIN NOBIS
AND MARY NOBIS
Upon the Petition of
KEVIN NOBIS,
Petitioner-Appellee,
And Concerning
MARY NOBIS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
The respondent appeals from the district court’s order modifying the child
support provision of the parties’ dissolution decree.
REVERSED AND
REMANDED WITH DIRECTIONS.
Teresa A. Rastede of Dunakey & Klatt, P.C., Waterloo, for appellant.
Mary Kennedy, Waterloo, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
2
VOGEL, P.J.
Mary Nobis appeals from the district court’s order modifying the parties’
dissolution decree.1
On June 24, 2008, the district court modified the child
support provisions of the parties’ dissolution decree. The district court found
Kevin, who had been paying child support in the amount of $720.07 per month,
should pay child support in the amount of $604.07 per month. The district court
stated:
Petitioner shall pay $604.07 per month child support retroactive to
February 1, 2008, which was the first payment due ninety days
after Respondent was served with Petitioner’s petition for
modification. The first payment is due on July 1, 2008 . . . Any child
support paid by Petitioner from February 1, 2008, in excess of this
order shall be credited against payments made from and after July
1, 2008, at the rate of $50 per month.
Mary filed a post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
in which she asserted that a retroactive reduction in child support was contrary to
Iowa law.
On July 16, 2008, the district court ruled that Mary was correct that child
support cannot be reduced retroactively. However, the court noted that from
November 1, 2007 to June 1, 2008, pursuant to the child support guidelines,
Kevin was required to pay $604.07, but Mary had collected $720.07 per month.
This “resulted in an unjust cost to Petitioner and an unjust benefit to Respondent
1
Kevin Nobis and Mary Nobis’s marriage was dissolved in September 2004. Mary
appealed from the dissolution decree, which this court affirmed as modified in In re
Marriage of Nobis, No. 04-2069 (Iowa Ct. App. Oct. 26, 2005). On November 28, 2005,
Kevin filed a petition to modify the dissolution decree. On October 19, 2006, the district
court modified the child support and visitation provisions. On October 25, 2007, Kevin
filed a petition seeking a second modification of the child support and visitation
provisions. Prior to trial, Kevin and Mary agreed to the child custody provisions. The
district court’s ruling is the subject of the present appeal.
3
of $928 . . . . [E]quity demands the Petitioner receive credit for the overpayment
in some fashion.” Therefore, the district court ordered that
Petitioner shall pay $469.35 per month child support on July 1,
2008, based upon his actual income, and on the first day of each
month thereafter through December 1, 2008, $484.39 on January
1, 2009 (which will fully amortize the $928 overpayment), and
$604.07 on the first day of each month thereafter, based on his
imputed income.
Mary appeals.
We review modification proceedings de novo. Iowa R. App. P. 6.4; In re
Marriage of Barker, 600 N.W.2d 321, 323 (Iowa 1999). Mary asserts, and Kevin
agrees, that the district court simply constructed a creative way to retroactively
reduce Kevin’s child support payments.2 In its June 2008 order, the district court
specifically stated it was retroactively reducing Kevin’s child support. In its July
2008 order, the district court acknowledged that a retroactive reduction was not
allowed. See Barker, 600 N.W.2d at 323 (“Our cases have consistently held that,
although a support order may be retroactively increased, it may not be
retroactively decreased.”). However, it then took a creative route to circumvent
its prior ruling as well as our case law, for which it cited no authority. Compare
id. at 324 (considering an accrued child support obligation in fixing the amount of
future support).
We conclude that the district court imposed an improper
retroactive modification of a child support order; therefore, we reverse and
2
Mary also argues that in determining Kevin’s overpayment of child support was a
financial burden that required a future credit be given to Kevin against future child
support payments, the district court erred in failing to take into consideration Kevin’s
fiancée’s income. We need not reach this issue as we conclude the future credits were
simply a retroactive reduction in child support.
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remand for entry of an order for child support in the amount of $604.07 per month
beginning July 1, 2008.
Mary also asserts that she should have been awarded trial attorney fees.
We review the district court’s denial of a request for trial attorney fees for an
abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa
1995). The district court stated: “From a review of the court file, it appears that
each of the parties has caused the other to incur substantial attorney fees and
this behavior should be discouraged.” We find no abuse of discretion in the
denial of Mary’s request for trial attorney fees.
Additionally, each party requests appellate attorney fees. For the same
reason cited by the district court, along with the relevant factors we consider in
determining whether an award of appellate attorney fees are warranted, we deny
both parties’ requests for appellate attorney fees. See In re Marriage of Gaer,
476 N.W.2d 324, 330 (Iowa 1991) (stating that in determining whether to grant
appellate attorney fees, we consider the needs of the requesting party, the
opposing party’s ability to pay, and whether the requesting party was forced to
defend the appeal). Costs are assessed to Kevin.
REVERSED AND REMANDED WITH DIRECTIONS.
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