                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0679
                               Filed April 1, 2020


IN RE THE MARRIAGE OF BLAKE ALLEN RIFE
AND JENNIFER HELEN RIFE,

Upon the Petition of
BLAKE ALLEN RIFE,
      Petitioner-Appellant,

And Concerning
JENNIFER HELEN RIFE, n/k/a JENNIFER HELEN CRANE,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dickinson County, Nancy L.

Whittenburg, Judge.



      Blake Rife appeals the district court’s order overruling his petition for

modification of certain provisions of his modified decree of dissolution.

AFFIRMED.



      Steven R. Postolka (until withdrawal) and Stephen F. Avery of Cornwall,

Avery, Bjornstad & Scott, Spencer, for appellant.

      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
                                           2


DOYLE, Judge.

       This appeals arises out of Blake Rife’s petition to modify the decree

dissolving his marriage to Jennifer Rife, now known as Jennifer Crane. Blake

asserts the district court erred in failing to modify the parties’ visitation arrangement

as requested, as well as the court’s calculation of Blake’s child support obligation.

Blake also contends the district court erred in ordering him to pay Jennifer’s trial

attorney fees. Upon our de novo review, we affirm the ruling and award appellate

attorney fees to Jennifer.

       I. Background Facts and Proceedings.

       Blake and Jennifer married in 2011, and two children were born to the

marriage. The marriage was dissolved in April 2016. The court approved the

parties’ stipulation and agreement and incorporated its terms into the decree.

       In the stipulation and agreement, the parties agreed to joint legal custody of

their children, with the children placed in Jennifer’s physical care. Blake was

granted visitation, and a detailed schedule was set out in their agreement. Blake

agreed to pay Jennifer monthly child support of $918.

       In July 2016, Blake petitioned to modify visitation, and in January 2017, the

parties filed a stipulation modifying their decree’s visitation provisions.           To

accommodate their preschooler’s schedule, Blake’s weekly daytime visitation was

moved from Wednesday to Friday. The parties also modified other visitation

provisions, such as the holiday visitation schedule. The district court approved the

parties’ stipulation and modified the original stipulation accordingly.

       At the end of July 2018, Blake filed a second petition seeking more

modification. Blake asserted there had been a material and substantial change in
                                          3


circumstances; both of the parties’ children were now attending school on a full-

time basis, conflicting with his midweek visitation. Blake stated he had sought to

work out a new schedule with Jennifer but she refused to make any changes.

       The parties’ claims over visitation, child support, and trial attorney fees were

tried to the court in January 2019. The district court overruled Blake’s petition to

modify the parties’ prior visitation schedule. The court sustained Blake’s petition

for modification of his child support obligation, finding it should be reduced to $763

per month. The court also sustained Blake’s petition related to his obligation of

paying seventy-one percent of the children’s medical expenses not covered by

insurance after Jennifer paid the first $250 of each child’s uncovered expenses,

lowering the percentage to fifty-one percent. But the court ordered Blake to pay

monthly cash medical support of $250 to Jennifer. The court also required Blake

pay $3500 to Jennifer for her trial attorney fees.

       Blake now appeals.

       II. Scope and Standards of Review.

       Actions for modification of child support, legal custody, and visitation orders

lie in equity; our review de novo. See In re Marriage of McKenzie, 709 N.W.2d

528, 531 (Iowa 2006); Nicolou v. Clements, 615 N.W.2d 905, 906 (Iowa Ct. App.

1994). “We examine the entire record and decide anew the legal and factual

issues properly presented and preserved for our review.” In re Marriage of Wade,

780 N.W.2d 563, 565-66 (Iowa Ct. App. 2010). We give weight to but are not

bound by the district court’s findings of fact, and we will only disturb the district

court’s ruling if it has failed to do equity. See In re Marriage of Mihm, 842 N.W.2d

378, 381 (Iowa 2014).
                                          4


        III. Discussion.

        On appeal, Blake contends the district court erred in denying his petition for

modification of visitation. He also challenges the district court’s calculation of his

child support and cash medical support obligations. Finally, he asserts the court

erred in awarding Jennifer trial attorney fees. Jennifer requests an award of

appellate attorney fees.

        A. Modification of Visitation.

        A parent seeking a change of custody bears the heavy burden of

establishing “by a preponderance of evidence that conditions since the decree was

entered have so materially and substantially changed that the [child]’s best

interests make it expedient to make the requested change.” In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (citation omitted). But “[a] different, less

demanding burden applies when a parent is seeking to change a visitation

provision in a dissolution decree.” In re Marriage of Brown, 778 N.W.2d 47, 51

(Iowa Ct. App. 2009). In that situation, the parent need only show “there has been

a material change in circumstances since the decree and that the requested

change in visitation is in the best interests of the [child].” Id. at 51–52 (citation

omitted); see also Smith v. Smith, 142 N.W.2d 421, 422 (Iowa 1966) (“It seems

readily apparent a much more extensive change of conditions would be required

to support a change of custody than would be necessary to justify a change of

visitation rights.”).

        Blake asserts there has been a significant change in circumstances since

the prior modification. Blake notes that both children are now attending school.

He also states one of the children “has begun exhibiting behavioral issues, which
                                          5


could be significantly lessened by spending additional time with his father.” Finally,

Blake claims “Jennifer’s refusal to come to terms with Blake on issues concerning

visitation suggest that a more stable visitation plan is desirable, and would alleviate

or prevent future conflicts.”

       Upon our de novo review of the record, we agree with the district court’s

conclusion—Blake failed to show there had been a significant change in

circumstances since the first modification. The first modification was made to

accommodate the older child’s school schedule.          Full-time schooling for both

children was on the horizon and within the parties’ contemplation when the first

modification was made. This is not a material change of circumstance.

       Blake’s other two asserted “changes” are unsupported by record evidence.

There is no evidence in the record to support Blake’s self-serving opinion that the

child’s behavioral issues—if there are any—would be cured by additional time with

Blake. Similarly, Blake’s suggestion that Jennifer’s actions evidence a change in

circumstance to support modifying the visitation schedule is simply that—a

suggestion. Both Blake and Jennifer agreed to the first modified schedule, and the

district court accepted the schedule. There is no claim Jennifer has violated the

schedule. While we encourage parents to work together to make accommodations

as necessary, that does not require Jennifer to accept Blake’s requested

modifications.

       Upon our review, we agree with the district court that Blake failed to show

the material change of circumstances necessary to support modification of the

existing visiting schedule agreed upon by the parties. We therefore find no error
                                         6


in the district court’s ruling overruling Blake’s petition to modify the visitation

schedule and affirm the issue.

       B. Child Support.

       “In Iowa, child support is calculated using the child support guidelines.” In

re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa 2018); see Iowa Code

§ 598.21B (2018); Iowa Ct. R. 9.2. “The purpose of the guidelines is to provide for

the best interests of the children by recognizing the duty of both parents to provide

adequate support for their children in proportion to their respective incomes.” Iowa

Ct. R. 9.3(1).

       “To compute the guideline amount of child support,” the district court must

first compute the adjusted net monthly income of each parent. Iowa Ct. R. 9.14.

That amount is ascertained by first determining each parent’s gross monthly

income and then subtracting specified taxes and deductions. See Iowa Ct. R.

9.14(1). Gross monthly income is the “reasonably expected income from all

sources.”    Iowa Ct. R. 9.5(1).   “Gross income from self-employment is self-

employment gross income less reasonable business expenses.” Iowa Ct. R.

9.5(1)(c).

       “A court must determine the parent’s monthly income from the most reliable

evidence presented.” In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991).

“All income that is not anomalous, uncertain, or speculative should be included

when determining a party’s child support obligations.” In re Marriage of Nelson,

570 N.W.2d 103, 105 (Iowa 1997). “[T]he burden is on the recipient of the income

to establish that it should be excluded from gross income as uncertain and

speculative.” Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005).
                                        7


      Child-support obligations can be modified if “there is a substantial change

in circumstances.” Iowa Code § 598.21C(1). To determine whether a substantial

change in circumstances has occurred over the child-support obligation, the court

must consider factors, including “changes in a party’s employment or income.”

Mihm, 842 N.W.2d at 381. Additionally, a “substantial change of 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 established pursuant to section 598.21B.” Iowa Code § 598.21C(2)(a).

The court must also “examine the factors in conjunction with several ‘other well-

established principles governing modification.’” In re Marriage of Michael, 839

N.W.2d 630, 636 (Iowa 2013) (quoting In re Marriage of McCurnin, 681 N.W.2d

322, 329 (Iowa 2004)).        These principles include “[t]he party seeking

modification . . . bears the burden of establishing by a preponderance of the

evidence the substantial change in circumstances,” the “substantial change

justifying a modification must be permanent or continuous rather than temporary

in nature,” and “the substantial change must not have been within the

contemplation of the district court when the decree was entered.” Id.

      On appeal, Blake asserts the district court miscalculated his income when

it included in its income determination that Blake received $3000 per month from

his parents. Blake contends the court misunderstood his testimony and that

income was already accounted for on his business tax returns. Jennifer points out

that Blake’s own testimony stated he received that amount from his parents

monthly, and she maintains the court’s overall determination that Blake’s gross

income was $60,000 per year was within the range of evidence presented at trial.
                                         8


Upon our de novo review of the record, we find the district court’s gross-income

determination to be within the range of permissible evidence. Cf. In re Marriage of

Keener, 728 N.W.2d 188, 194 (Iowa 2007) (“A trial court’s valuation will not be

disturbed when it is within the range of evidence.”).

       Blake testified he owned a small share of his parents’ business, Rife Farms,

LLC. Blake testified his parents paid him “for the labor of the improvements

that . . . they make to the farm.” Asked how much of his income was paid by his

parents in 2018, Blake answered, “I get $3000—they paid me $3000 or so a month.

But some of that has to go into my day-to-day operations too on the farm.” Blake

testified that amount was accounted for in the farm business’s “custom hire”

income. Blake maintained his only income was that he paid himself out of the

business account of about $2000 per month. He provided nothing to support that

figure except his own testimony and an “Agricultural Balance Sheet” from his bank

for his business, “Farm Solutions Inc.” The balance sheet reported $848,653 in

assets and $402,764 in total liabilities, leaving a total equity of $445,889. He had

not filed his 2018 taxes yet, so he provided no other current income documents.

He agreed he reported a total business loss of $35,215 in 2017, but he could not

say where on the profit or loss schedules his salary was reported.

       The district court explained how it determined Blake’s income:

       When the divorce was filed, Blake was farming and teaching school,
       but by the time the divorce was finalized he had transitioned to full-
       time farming. At trial, Blake testified that he pays himself $2000 per
       month salary from his farming operation, receives $3000 a month
       from his parents to manage Rife Farms LLC, receives $400 a month
       from the Evans Stock Farm for management services, however, that
       farm was recently sold and he does not expect to continue to receive
       that income, and he also receives income from custom baling for
       neighbors but did not specify the amount of that income. On this
                                          9


       evidence alone, Blake earns in excess of $5000 gross income per
       month (no testimony identified the amount of income Blake earns
       from custom baling so the court is unable to include that income in
       the court’s computation of Blake’s gross annual income) or nearly
       $2000 more in gross income then he earned in 2016 when the
       decree was entered. On this evidence, the court finds that Blake’s
       gross annual earnings are $60,000.

       There is no dispute of a substantial change of circumstances in Blake’s

income. But Blake’s trial evidence about his gross income was scant. Only his

self-serving testimony supported his claim that he paid himself a low monthly

salary amount from his business. Blake’s personal and business tax returns do

not specifically account for a paid salary from the business. He did not provide

something like a bank statement showing a regular deposit of money from his farm

account to his personal account as a salary. He did not have his accountant

explain his tax filing and accounting. Without this, there is insufficient evidence to

support Blake’s claim he was only earning $30,000 per year.

       Gross income from self-employment is self-employment gross income less

reasonable business expenses. See Iowa Ct. R. 9.5(1)(c). Blake’s farm business,

despite the report of overall losses, was making some profits.          Many of his

expenses, while valid for tax purposes, were paid to his parents’ business. He

rented farmland, his house, and equipment, among other things, from his parents’

business. They in turn paid his business for some of his labor. Ultimately, there

was money coming in and going out, and the amount Blake kept as a salary or

other income is unclear.     Given Blake’s inability to explain how his salary is

accounted for within his business’s tax returns, we cannot say the court’s inclusion

of $3000 per month for an amount Blake testified his parents were paying to him

and the business was in error. The burden was on Blake to establish that amount
                                         10


was a reasonable business expense. Because nothing can be separated out and

Blake provided no evidence to do so, we find the district court’s determination that

Blake’s annual gross income was at least $60,000 was well within the range of

evidence. So we will not disturb it or the modified child-support award and affirm

on this issue.

       C. Trial Attorney Fees.

       Blake challenges the district court’s award of attorney fees in favor of

Jennifer in the amount of $3500. “We review this award for an abuse of discretion.”

See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). The “abuse of

discretion” standard is our most deferential standard of review. See State v. Roby,

897 N.W.2d 127, 137 (Iowa 2017). “Trial courts have considerable discretion in

awarding attorney fees.” In re Marriage of Witten, 672 N.W.2d 768, 784 (Iowa

2003) (quoting In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994)). The

fees must be fair and reasonable and whether they should be awarded depends

on the respective abilities of the parties to pay. See id.

       Upon our de novo review, we cannot say the district court abused its

discretion in its attorney fee award. The court considered the requisite factors. We

therefore affirm the award of attorney fees.

       D. Appellate Attorney Fees.

       Finally, Jennifer requested an award of appellate attorney fees of $11,880.

An award of appellate attorney fees is not a matter of right but rests within this

court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App.

2007). In determining whether to award attorney fees, we consider the needs of
                                          11


the party making the request, the ability of the other party to pay, and whether the

party making the request had to defend the district court’s decision on appeal. Id.

       In consideration of these factors, we award appellate attorney fees to

Jennifer of $5000. Any costs on appeal are assessed to Blake.

       IV. Conclusion.

       Upon our de novo review of the record, we agree with the district court that

Blake failed to prove there was a material change in circumstances to warrant

modification of the parties’ previously modified visitation schedule. We also find

the district court’s determination of Blake’s annual gross income was within the

range of permissible evidence presented at trial, and we will therefore not disturb

it. We find no abuse in discretion by the district court’s award of trial attorney fees

to Jennifer. Finally, we find Blake should pay to Jennifer a $5000 award of

appellate attorney’s fees. We affirm on all issues.

       AFFIRMED.
