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In re Marriage of Flemming-Jess

Court of Appeals of Iowa

July 24, 2019

IN RE THE MARRIAGE OF BRANDY FLEMMING-JESS AND MATTHEW FLEMMING Upon the Petition of BRANDY FLEMMING-JESS, Petitioner-Appellant, And Concerning MATTHEW FLEMMING, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.

         Brandy Flemming-Jess appeals from an order modifying the child-support provisions of the decree dissolving her marriage to Matthew Flemming.

          Erin M. Carr of Carr Law Firm, Des Moines, for appellant.

          David P. Kozlowski and David Barajas of Macro & Kozlowski, LLP, West Des Moines, for appellee.

          Considered by Mullins, P.J., Bower, J., and Mahan, S.J. [*]

          MAHAN, SENIOR JUDGE.

         Brandy Flemming-Jess appeals from an order modifying the child-support provisions of the decree dissolving her marriage to Matthew Flemming. She argues Matthew is not entitled to a reduction of his child-support obligation because he voluntarily reduced his income. Upon our de novo review, we agree modification is appropriate under the facts of this case and we affirm.

         I. Background Facts and Proceedings

         Matthew and Brandy divorced in October 2014. They agreed Brandy would receive physical care of their two children. At the time of the dissolution, Matthew, a medical doctor, worked as a cardiologist and an electrophysiologist, and he was earning in excess of $500, 000 per year. Brandy was employed part-time as an emergency medical technician, and she was earning less than $10, 000 per year. The parties agreed Matthew would pay Brandy $3500 per month in child support.

         In October 2015, Matthew suffered a cardiac arrest and diabetic seizure, resulting in neurological dysfunction, including cognitive impairment, visual and speech difficulty, and tremors. Matthew engaged in therapy, and he was eventually able to return to work with restrictions. However, in June 2016, Matthew's employer, Mason City Clinic, informed him it was not able to accommodate his restrictions. Matthew was also notified his hospital privileges were not being reinstated. Matthew continued rehabilitation, but he was informed it was unlikely he "could return to work." Nevertheless, Mason City Clinic allowed him to return to work with restrictions in October 2016. He was terminated in March 2017 after a peer reported him to the Iowa Board of Medical Examiners due to concerns about his ability to practice medicine. Since then, Matthew applied for numerous positions but has received no interviews. Currently, his sources of income are $7000 per month and $5000 per month from two untaxed, private disability policies. Matthew applied for Social Security Disability; he was initially denied those benefits, but if granted, those benefits would offset his private disability benefits.

         Meanwhile, in 2016, Brandy suffered multiple strokes and is now medically disabled. She receives Social Security Disability benefits in the amount of $17, 364 per year.

         In August 2017, Brandy petitioned to modify the child support provisions of the parties' dissolution decree, alleging a substantial and material change in circumstances in that she "is no longer able to work" and Matthew's child support obligation for an older child "has expired." Matthew filed a counter-claim, alleging a substantial and material change in circumstances in that his "income has decreased to such extent as there now exists a ten-percent deviation from [his] present child support obligation." In March 2018, the district court entered a temporary order modifying Matthew's child support obligation to $2500 per month.

         In August 2018, following trial, the district court entered its ruling, denying Brandy's petition and granting Matthew's request for a modification of child support. The court modified the child support provisions to order Matthew to pay $2193.22 per month to Brandy, pursuant to the child support guidelines. The court ordered each party to pay their own attorney fees. Brandy appeals.

         II. Scope and ...


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