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In re Marriage of George

Court of Appeals of Iowa

December 6, 2017

IN RE THE MARRIAGE OF JENNIFER LYNN GEORGE AND ADAM GEORGE Upon the Petition of JENNIFER LYNN GEORGE, Petitioner-Appellant, And Concerning ADAM GEORGE, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.

         A mother appeals a district court ruling on her modification petition and the father's counterclaim for support modification. AFFIRMED AS MODIFIED.

          Elizabeth A. Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des Moines, for appellant.

          Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, Judge.

         Jennifer George appeals a district court ruling on her modification petition. The district court made limited modifications to the visitation schedule and modified the child-support award using Jennifer's earning capacity and Adam George's actual earnings. Jennifer argues the visitation schedule should be further modified for purposes of consistency and the child-support modification resulted in substantial injustice. Adam argues the modification petition was correctly denied and the child support award was correctly modified.

         I. Background Facts and Proceedings

         Jennifer and Adam were married for nearly twelve years. The parties share two children, born in 2005 and 2009. Jennifer and the parties' two children moved to Iowa in March 2013, and have lived with Jennifer's parents since relocation. The parties dissolved their marriage by stipulation entered on July 3, 2013, in Harris County, Texas. Adam moved to Iowa in July 2013, shortly after the dissolution. Adam married his current wife, Elizabeth, in November 2014.

         Jennifer became a licensed teacher in Iowa in 2001 and was relicensed upon her return to Iowa in 2013. Although Jennifer did not work outside the home for the last three to four years of the parties' marriage, she is now employed as a substitute teacher in the West Des Moines School District. Jennifer also works part-time at her church and as a server at a restaurant. During the marriage, Adam worked as a pilot for ExpressJet. He began working for Spirit Airlines in February 2015. This change resulted in a salary reduction of more than $38, 000.00 for two consecutive years. Elizabeth is a business analyst at Mercer.

         Jennifer filed a petition to modify the original decree on May 6, 2014. She requested the court to modify the visitation schedule from a non-traditional system of Adam choosing certain times when he is not working to a traditional, every-other-weekend visitation schedule. Jennifer made a number of other claims for a more structured visitation schedule, including a right of first refusal provision for any time a parent cannot exercise visitation and a requirement that the children be with the parent, not "girlfriends, step-parents or random babysitters." Adam argued no significant changes had occurred to warrant visitation modification that had not been within the contemplation of the court that entered the original decree. Adam counter-claimed for a reduction in his child support based on a substantial and material change in circumstances of more than ten percent in the amount he should be required to pay. He made other claims including, but not limited to, a proposed requirement that the parents agree on all medical, mental health, and chiropractic care, and extracurricular sports and clarification on claiming the children for tax purposes.

         The district court found substantial and material changes in circumstances had occurred regarding the visitation schedule since the entry of the dissolution decree. The court also found a substantial and material change in circumstances had occurred "in that Respondent's child support obligation does vary by 10% and should be and is hereby modified pursuant to Iowa Code § 598.21(C)(2)(A) [(2014)]." The district court modified the visitation provisions by removing veto power on parenting time, and concluded that the variable nature of Adam's work hours made the schedule proposed by Jennifer impractical. The holiday schedule was also modified because the court found it was "in the children[s'] best interest to be with either [Jennifer] or [Adam] on holidays and special occasions." Adam's child support was reduced as of January 1, 2017, from $1144.84 to $526.46, and would raise to $700.76 as of March 1, 2017, based on Adam's expected raise in income. Jennifer appeals.

         II. Standard of Review

         Review is de novo, in which we examine the entire record anew. Iowa R. App. P. 6.907; In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). Weight is given to factual findings of the trial court, especially when concerning the credibility of witnesses, but we are not bound by ...


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