In re the Marriage of Sliger ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0458
Filed February 6, 2019
IN RE THE MARRIAGE OF CASSIDEE SLIGER
AND JOSEPH SLIGER
Upon the Petition of
CASSIDEE SLIGER, n/k/a CASSIDEE PARKS,
Petitioner-Appellee,
And Concerning
JOSEPH SLIGER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
The father appeals the denial of his petition to modify his child-support
obligation. REVERSED AND REMANDED.
Mark Simons of Simons Law Firm, PLC, West Des Moines, for appellant.
Benjamin Folladori of Marberry Law Firm, PC, Urbandale, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.
Joseph Sliger appeals from the district court’s denial of his petition to modify
his child-support obligation, arguing his reduction in income since the entry of the
2016 decree dissolving his marriage to Cassidee Sliger (now known as Cassidee
Parks) entitles him to a reduction pursuant to Iowa Code section 598.21C(2)
(2017). John asserts his reduction in income was not voluntary and the court was
wrong to deny him relief. See In re Marriage of McKenzie, 709 N.W.2d 528, 533
(Iowa 2006) (“One of the factors we consider in determining if we will use a parent’s
earning capacity, rather than a parent’s actual earnings, in order to meet the needs
of the children and do justice between the parties is whether the parent’s inability
to earn a greater income is self-inflicted or voluntary.”). Cassidee asks that we
affirm the district court’s ruling and award her appellate attorney fees.
We review a child-support modification action de novo. Id. at 531.
“Although we give weight to the findings of fact made by the district court,
especially as to the credibility of witness, we are not bound by those findings.” Id.
Modification. As part of the parties’ stipulated dissolution decree, Joseph’s
child-support obligation was calculated at $800 per month—based upon his annual
income of approximately $42,000 and imputing income of $28,000 to Cassidee.
Then in October 2017,1 Joseph, who had worked as a detention officer at a local
jail for a number of years, got into a verbal altercation with an inmate. During the
altercation, Joseph removed his shirt and suggested he and the inmate fight. As
1
Joseph’s change in employment took place after he filed the petition to modify. At the
trial on the petition, Joseph’ verbally moved to amend the petition to include the change in
employment as a ground for modification, Cassidee did not object and the district court
granted the motion.
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a result of the incident, Joseph’s boss recommended he be fired. Joseph appealed
the recommendation, but the sheriff determined Joseph did not have the
temperament to work as a detention officer. Joseph was given the option to submit
his resignation in lieu of termination, and he did so. Within a few days, Joseph
began working at a private landscaping company, where he earns $12 per hour;
the work is seasonal. At the trial on the petition to modify, Joseph testified he
expects his new annual income to be $24,888, including the unemployment
benefits he receives during the off-season.
The district court denied Joseph’s request to modify his child-support
obligation, noting that while Joseph now earns much less than he earned before,
“Joseph’s voluntary acts taken during the course of his prior employment are an
impediment to modification. His children’s need for sufficient support is unabated,
and Joseph remains responsible for that support.” In reaching this conclusion, the
court stated:
Joseph’s resignation from the position in question was a direct result
of his elective on-the-job conduct. Joseph may not have intended to
deprive his children of support. But his elective conduct that led to
his resignation evidences a reckless disregard by Joseph for his
children’s well-being because he failed to consider the monetary
consequences of his actions.
The court is to consider whether a parent’s reduction in income is voluntary. See,
e.g., In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993). Moreover, a
parent is not free to make choices without regard to his or her obligation to their
children. See McKenzie, 709 N.W.2d at 534. But modification is not denied in all
cases when the noncustodial parent’s income decreases. See, e.g., In re Marriage
Walters, 575 N.W.2d 739, 741 (Iowa 1998) (finding a noncustodial parent’s
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reduction in income and earning capacity that was the result of his voluntarily
criminal activity was not done with an improper intent to deprive his children of
support); Foley, 501 N.W.2d at 500 (finding that an obligor’s reduction in income
due to termination of employment for insubordination was not voluntary or self-
inflicted); Boquette v. Boquette, 247 N.W. 255, 256 (Iowa 1933) (determining an
obligor’s demotion with resulting lower salary justified reduction of support
obligation); Nicolls v. Nicolls, 235 N.W. 288, 289 (Iowa 1931) (finding the discharge
from employment and inability to obtain a job with comparable pay justified
reduction of support obligation); In re Marriage of Hackett, No. 17-1051, 2018 WL
2727757, at *5–6 (Iowa Ct. App. June 6, 2018) (finding the district court erred in
refusing to modify child-support obligation after father was terminated from his
employment for continued misuse of the company credit card after being warned
by his employer and where father now earned approximately half of his former
salary); In re Marriage of Knust, No. 16-1664, 2017 WL 3283301, at *1–2 (Iowa Ct.
App. Aug. 2, 2017) (concluding the father’s decision to drive while intoxicated,
which resulted in his transfer to a lower paying job, did not qualify as a self-inflicted
or voluntary reduction of income that prevented the reduction of his child-support
obligation); In re Marriage of Blum, 526 N.W.2d 164, 166 (Iowa Ct. App.1994)
(finding the reduction in income was not self-inflicted or voluntary where the
noncustodial parent lost his job in Harlan, Iowa, and refused to move to Denison
to take a higher paying job as he wanted to stay in Harlan where his children lived);
In re Marriage of Drury, 475 N.W.2d 668, 672 (Iowa Ct. App.1991) (finding an
honorable discharge from military and concomitant loss of military pay for failure
to comply with weight limits was not voluntary or self-inflicted); In re Marriage of
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Fidone, 462 N.W.2d 710, 712 (Iowa Ct. App.1990) (holding a noncustodial parent’s
refusal to accept relocation as an alternative to discharge did not constitute a self-
inflicted reduction in salary for purposes of determining whether child support
provisions of divorce decree should be modified; where relocation would involve
move of 1200 miles, there was a possibility of further layoffs at new location, and
he wanted to remain close to his family).
We believe this situation is similar to those cited above, where our court and
the supreme court have refused to continue child support at a level that has
become unrealistic as a result of a parent’s actions. Nothing in the record supports
a finding Joseph undertook his actions with the intent to deprive his children of
support. And though Joseph’s current financial status is a result of his voluntary
actions, some consideration of ability to pay is necessary. See Walters, 575
N.W.2d at 743 (“While we realize our decision to reduce [the parent’s] support
obligation will impact the parties’ children, we must base our decision on reality
rather than an unattainable utopia.”).
We conclude Joseph’s altercation with the inmate “does not qualify as a
self-inflicted or voluntary reduction of income that would justify using his former
salary in setting child support payments.” Foley, 501 N.W.2d at 500.
Consequently, we reverse the district court’s denial of Joseph’s petition to modify
his child-support obligation. We remand for the obligation to be recalculated using
the parties’ current incomes.2
2
We note that Cassidee encouraged the court to use imputed income for both her and
Joseph rather than either of their actual incomes. Pursuant to Iowa Court Rule 9.11(4),
“The court shall not impute income unless a written determination is made that, if actual
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Appellate Attorney Fees. Cassidee asks that we award her appellate
attorney fees, which is within our discretion. See In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006). “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. (citation
omitted).
While Joseph earns more than Cassidee does, he has also been successful
on appeal. We decline to award Cassidee appellate attorney fees.
REVERSED AND REMANDED.
earnings were used, substantial injustice would occur or adjustments would be necessary
to provide for the needs of the child(ren) or to do justice between the parties.”