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In Re the Marrige of Mary Margaret Fraser Strang and Robert J. Strang Upon the Petition of

January 9, 2013


Appeal from the Iowa District Court for Johnson County, Marsha A. Bergan, Judge.

The opinion of the court was delivered by: Danilson, J.

Robert James Strang appeals child support and attorney fees provisions of a modification of his dissolution decree. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

Robert James Strang appeals the child support and attorney fees provisions of a modification of his dissolution decree. Robert contends the trial court should have retroactively offset his child support obligation by the social security dependent benefits the children receive due to his retirement. He further argues Mary should be required to pay his trial and appellate attorney fees. Because Robert had knowledge of the social security benefits at the time of the decree and did not earlier obtain modification for an offset towards his child support obligation, he may not now recoup his past child support payments. His request for attorney fees is also denied. We affirm.

I. Background Facts and Proceedings.

Robert and Mary Strang were divorced after a twelve-year marriage, in February 2006. During the parties' marriage, Robert worked full-time performing medical research and pursuing a Ph.D. in Pharmacy.*fn1 Mary also worked full-time as a pediatric nurse. Twins Rachel and Robbie were born to the couple in October 1999.

In July 2004, Robert began receiving social security retirement benefits for himself and dependent benefits for his children. Mary asserts that Robert failed to disclose to her that he was receiving the benefits. She claims she learned of the benefits the day before the parties' dissolution trial, confronted Robert with the non-disclosure the day of trial, and negotiated a favorable settlement agreement as a result of Robert's transgression. Robert contends that Mary handled the marital finances and would have had knowledge of the benefits, as she would have deposited the children's checks.

Although both Robert and Mary were represented by counsel, Robert contends he had no knowledge that his child support obligation should have been offset by the amount of social security benefits that the children were receiving due to their status as his dependents. He claims there was no agreement between the parties related to the benefits. Mary contends that the parties agreed on the child support figure, which was to be paid in addition to the social security dependent benefit payments.

The stipulation approved in the decree awarded the parties joint legal custody and Mary physical custody of the children. Robert was required to pay $865 per month in child support. The stipulation did not mention the social security dependent benefits, nor were the benefits identified on either party's financial affidavits.

Robert filed a petition for modification July 30, 2009, seeking shared care of the children. Although the court ordered Mary to produce documentation of the social security income she received on behalf of the children, and that amount exceeded what Robert was ordered to pay in child support, the court found "no basis on which to change the child support" in that action. The court reasoned that Robert's request to modify child support was connected to his request to modify the physical care arrangement. Because the court declined to modify physical care, it also denied modification of child support.*fn2

Between the time of the modification trial and the ruling, Robert's income changed.*fn3 His doctor advised him to discontinue work in January 2011 due to his need for surgery. Robert had the surgery March 31, 2011. After his recovery he sought work, but at age seventy-two, was unable to find employment. Thus, his income since January 2011 has been social security retirement benefits and food stamps. He has obtained food from a crisis center and assistance with his electrical bills.*fn4 He was only able to pay child support in the amount of $290.83 in 2011. Mary initiated an action through the Child Support Recovery Unit for recovery of delinquent support payments. Enforcement efforts ceased when the court suspended Robert's child support obligation, pending further hearing, on November 17, 2011.

Robert filed a second petition for modification on October 26, 2011.*fn5 In the second amended petition,*fn6 Robert requested that his child support obligation be reduced retroactively, effective either three months from the date of the first or second petition for modification, and that his total child support obligation from the date of the dissolution decree be offset by the social security dependent benefits the children received during that period. Robert also requested the court permanently suspend or terminate his future child support obligation and order Mary to pay his attorney fees.*fn7

In its December 28, 2011 decree of modification, the district court found modification was warranted due to the substantial change in Robert's financial circumstances, and that implementation of an offset of Robert's support obligation based on the social security benefits received by the children was equitable. The court noted that when the parties entered the agreement, Robert was already receiving the social security benefits and Iowa law provided that "dependent benefits would generally offset any regular amount of child support ordered." However, the court observed that there was no express agreement in the stipulation or decree which precluded implementation of an offset in a modification action.

The court further concluded an offset should be implemented effective with the next support payment due, and that Robert's obligation was completely offset by the dependent benefits. However, the court declined to grant a retroactive modification and denied Robert's request for attorney fees. On appeal, Robert claims the general rule that child support can only be modified retroactively from three months after service of a petition for modification should not apply, because the issue is not changing the amount of support, but rather whether the support payment should be offset by the social security dependent benefits. ...

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