IN RE THE MARRIAGE OF CHRISTINE G. PETERSON AND DARIN L. PETERSON; Upon the Petition of CHRISTINE G. PETERSON, n/k/a CHRISTINE G. WAHLERT, Petitioner-Appellee, And Concerning DARIN L. PETERSON, Respondent-Appellant
This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Guthrie County, Randy V. Hefner, Judge. Darin Peterson appeals the modification of his child support obligation and the district court's award of trial attorney fees.
J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenk & Lauterbach, P.C., Harlan, for appellant.
Kara L. McClure of Bergkamp, Hemphill & McClure, P.C., Adel, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ. Vaitheswaran, J., concurs; Danilson, C.J., concurs in part and dissents in part.
Darin Peterson appeals the modification of his child support obligation and the district court's award of trial attorney fees. The child support ordered was within the guidelines and we discern no reason to vary from the guideline amount. The district court did not abuse its discretion in ordering Darin to pay a portion of Christine Peterson's (n/k/a Christine Wahlert) trial attorney fees. We affirm and order Darin to pay $1500 toward Christine's appellate attorney fees.
I. Background Facts and Proceedings.
Darin and Christine were married in 1991 and divorced in 2002. They have three children together: two girls, ages seventeen and eleven, and a boy, age twelve. Under the terms of the dissolution decree, Christine had physical care of the children and Darin paid $600 per month in support.
In 2012, Darin filed an application to modify the decree, asserting a change in circumstances because the oldest daughter had come to reside with him. Christine admitted the change in circumstances and sought a reevaluation of Darin's child support obligation. Based upon the parties' agreement, a stipulated order modifying the custody and visitation provisions of the dissolution decree was entered, and trial was had on the issue of child support.
At the February 15, 2013 trial, the parties' stipulated Darin's three-year average income from farming was $49,166 per year.
Christine is a registered nurse and remarried. She has one child with her current husband, who was age three at the time of trial. The child has severe physical limitations. At the time of trial, Christine was making $24.15 per hour and working a maximum of twenty-four hours per month. Christine testified she had worked full-time (seventy-two hours per two week period) earning $21.85 per hour until May 2012. When Christine and her husband learned in January 2012 that their child had a narrowing of her spinal column, which posed additional risks to her physical condition, Christine's daycare provider refused to continue caring for the then two-year-old child. Christine was unable to find alternate childcare. Christine testified she attempted to continue working nights while caring for the child during the day, but was unable to do so. Darin urged the court to consider Christine's earning capacity rather than actual earnings.
The district court calculated child support based on Christine's actual earnings (approximately $6955 per year). The court noted the use of actual income was consistent with the child support guidelines, see Iowa Ct. R. 9.11(4), as well as with case law reflecting the view " that actual income should be used in calculating a child support obligation when the decision to remain home to care for young children is compelled by economic or, as in this case, medical concerns." See In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997) (noting earning capacity may be used when a parent voluntarily reduces income, but rejecting father's contention that earning capacity of mother should be used: " As a mother of four, it was eminently reasonable for her to choose to spend half of her working hours parenting the children, including the two from the parties' marriage." ); In re Marriage of Salmon, 519 N.W.2d 94, 97 (Iowa Ct. App. 1994) (" [B]efore using earning capacity rather than actual earnings, a finding must be made by the court that the use of actual earnings would create a substantial injustice or that adjustments would be necessary to provide for the needs of the children and to do justice between the parties." ). Offsetting Christine's child support owed ...