IN RE THE MARRIAGE OF NATHAN ALLEN LOGEMANN AND KERSTEN ASHLEY LOGEMANN Upon the Petition of NATHAN ALLEN LOGEMANN, Petitioner-Appellee, And Concerning KERSTEN ASHLEY LOGEMANN, n/k/a KERSTEN ASHLEY ABILD, Respondent-Appellant.
from the Iowa District Court for Cass County, James M.
mother appeals from the district court's denial of her
request to modify the child-support provision of the
L. Fisher of Fisher, Fisher & Groetken, P.C., Adair, for
M. Broadway-Savage of Savage Law, Council Bluffs, for
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Abild (formerly known as Kersten Logemann) appeals from the
district court's denial of her request to modify the
child-support provision of the decree dissolving her marriage
to Nathan Logemann. Kersten maintains the court denied her
request based on an erroneous finding that she voluntarily
reduced her earning capacity and conflated that with
instances when the parent's reduced earning capacity and
inability to pay support is self-inflicted or intended to
deprive the children. See, e.g., In re Marriage
of Swan, 526 N.W.2d 320, 323- 24 (Iowa 1995). Our scope
of review of a child support modification action is de novo.
In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa
Code section 598.21C (2016) allows the court to modify a
child support order "when there is a substantial change
in circumstances." "In determining whether there is
a substantial change in circumstance, " the court is to
consider "[c]hanges in employment, earning capacity, or
resources of a party." Iowa Code § 598.21C(1)(a).
Additionally, "a substantial change in circumstances
exists 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."
Id. § 598.21C(2)(a). It is the party seeking
modification-here, Kersten-who bears the burden of
establishing by a preponderance of the evidence the
substantial change in circumstances.
not need to decide whether Kersten's purported reduction
in earning was done with the intent to deprive her children
of support. As the district court found, Kersten failed to
provide sufficient evidence to establish a substantial change
warranting modification occurred. The court stated,
"Presently, Kersten is employed by a local veterinarian.
No competent evidence was proffered to support a modification
of child support at this time. Specifically, no evidence was
proffered as to the parties' net monthly incomes when
support was initially established in 2013 or
presently." Kersten offered into evidence a completed
child support worksheet, which showed the amount of support
Nathan would owe if the court modified the custody of the
children so Kersten became the primary caregiver. She did not
introduce any evidence to support her current earnings or her
earnings before she was fired from her job at the hospital.
Kersten still had two other jobs at the time of the
modification hearing; it is unclear if losing her third job
resulted in her working more hours at her other two jobs.
Additionally, even if we could conclude the loss of one of
her jobs was enough to find a substantial change in
circumstances without evidence of how it affected her
financially, without evidence of her income, it is impossible
to set a new obligation.
Appellate Attorney Fees.
asks us to award him $5000 in appellate attorney fees. An
award of such fees is discretionary. See Spiker v.
Spiker, 708 N.W.2d 347, 360 (Iowa 2006) (considering the
award of appellate attorney fees in a modification action).
"Factors to be considered in determining whether to
award attorney fees include: 'the needs of the party
seeking the award, the ability of the other party to pay, and
the relative merits of the appeal.'" Id.
(quoting In re Marriage of Okland, 699 N.W.2d 260,
270 (Iowa 2005)). As noted above, the record before us
contains very little information regarding Kersten's and
Nathan's finances. Without more information, we are
unable to determine that Nathan needs his fees to be paid or
that Kersten has the ability to do so. We decline to award
Nathan appellate attorney fees.