                   IN THE COURT OF APPEALS OF IOWA

                                 No. 19-1191
                             Filed April 29, 2020


IN RE THE MARRIAGE OF CATHERINE HOLMAN
AND JONAS HOLMAN

Upon the Petition of
CATHERINE HOLMAN,
      Petitioner-Appellee,

And Concerning
JONAS HOLMAN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin,

Judge.



      A father appeals the district court decision on his motion for declaratory

judgment concerning child support. AFFIRMED.



      Amanda L. Green of Takekawa & Green, PLLC, Ankeny, for appellant.

      Lora L. McCollom of McCollom Law Firm, PLLC, West Des Moines, for

appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       Jonas Holman appeals the district court decision on his motion for

declaratory judgment concerning child support. The evidence does not support a

finding that the parties entered into a contract that provided Jonas would only be

responsible to pay a reduced amount of child support. Jonas did not preserve

error on his claim mortgage payments he made should be offset against the total

amount of his child support obligation. We decline Catherine Holman’s request for

appellate attorney fees. We affirm the decision of the district court.

       I.     Background Facts & Proceedings

       Jonas and Catherine were previously married. They have three children,

who were born in 2001, 2003, and 2004. The parties’ dissolution decree, filed on

October 5, 2006, granted the parties joint legal custody and placed the children in

Catherine’s physical care. Jonas was ordered to pay child support of $3300 per

month for the three children, to be paid through the Collection Services Center. 1

In a separate provision, Jonas was ordered to pay the mortgage on the marital

home while the home remained listed for sale.

       Jonas did not pay child support through the Collection Services Center but

paid Catherine directly. On May 14, 2019, Jonas filed a motion for declaratory

judgment, which claimed the parties had orally agreed in 2013 to reduce his child

support obligation. Jonas stated he was current in paying this reduced amount

and asked for a declaratory judgment confirming that his child support was




1 The decree provided the amount of child support would be reduced as the
number of children eligible for support was reduced.
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satisfied at that time. Jonas wanted this order stating he was current on his child

support obligation so he could sell his house.

       At the hearing on his motion, Jonas testified there had never been a formal

modification of the dissolution decree. He stated the parties had informally agreed

he would pay $466 per month for six months in 2011 and $1800 per month from

July 2013 to the date of the hearing. He also stated the situation “resolved itself

with [Catherine] asking for another five years of payments beyond the age of 18.”

Catherine testified she believed Jonas would continue to pay child support until the

full amount was paid, even if he did not pay the full amount due each month. Both

parties also testified the mortgage payments were made voluntarily by Jonas.

       The district court found there had not been a modification of the dissolution

decree to reduce Jonas’s child support obligation. The court also found there was

not sufficient evidence to show a contract to reduce child support. The court

entered an order of partial satisfaction of child support, finding Jonas had satisfied

child support in the amount of $374,970.91 through May 31, 2019. Jonas appealed

the district court’s order.

       II.     Standard of Review

       Our review of a district court’s ruling on a motion for declaratory judgment

depends upon how the action was tried. Van Sloun v. Agans Bros., Inc., 778

N.W.2d 174, 178 (Iowa 2010). The parties agree this action was tried in equity.

Therefore, our review is de novo. See Iowa R. App. P. 6.907. We examine the

entire record and adjudicate the issues anew. In re Marriage of McDermott, 827

N.W.2d 671, 676 (Iowa 2013). We give weight to the district court’s factual
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findings, especially concerning the credibility of witnesses, but those findings are

not binding on appeal. Iowa R. App. P. 6.904(3)(g).

         III.   Discussion

         A.     Jonas claims the parties agreed to a reduction in his child support

obligation. He relies in part on the fact that Catherine never initiated a contempt

action against him for unpaid child support. Jonas asserts the district court should

have found his child support obligation satisfied through the date of the trial court’s

order.

         Jonas relies upon In re Marriage of Wimmer, 349 N.W.2d 505, 507 (Iowa

Ct. App. 1984), which stated, “Divorced parents may contract between themselves

concerning the support of their minor children if the children’s best interests are

not harmed thereby.” The district court found there was not sufficient evidence of

a contract between the parties to reduce Jonas’s child support payments. The

court stated, “I can’t find by any kind of preponderance of the evidence that there

was any reasonable certainty of a contract.” The court also stated there was no

evidence that a reduction in child support was in the children’s best interests.

         We agree with the district court’s conclusion. Jonas testified that when he

had a conversation with Catherine about reducing his child support payments, this

“[l]ed to a few different back and forths. We talked on the phone as well. I think it

resolved itself with her asking for another five years of payments beyond the age

of 18.” Catherine testified that she did not agree to forgive the difference between

the amount of child support Jonas was paying and the amount due but believed

Jonas would “continue to pay until it’s been paid in full.” The evidence does not

support a finding that the parties entered into a contract that provided Jonas would
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only be responsible to pay a reduced amount of child support. Furthermore, there

was no evidence to show any such agreement would have been in the best

interests of the children.

       B.     Jonas asserts it is inequitable to require him to pay the full amount

of his child support obligation because he paid the mortgage payment for many

years on the home where Catherine and the children were living. He states these

mortgage payments should be offset against the total amount of his child support

obligation.

       Jonas did not raise this issue before the district court.     In his closing

argument to the court he stated only that “the parties entered an agreement

reducing the child support to $1800 a month.” Furthermore, the district court did

not rule on the issue. We conclude the issue has not been preserved for our review

and we do not address it.2 See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”).

       IV.    Appellate Attorney Fees

       Catherine seeks attorney fees for this appeal. Appellate attorney fees are

not awarded as a matter of right, but rest within the court’s discretion. In re

Marriage of Stenzel, 908 N.W.2d 524, 538 (Iowa Ct. App. 2018). In considering



2 Even if the issue had been preserved, we would find Jonas’s payments on the
mortgage should not be offset against his child support obligation. Jonas testified,
and Catherine agreed, the payments were made voluntarily. Jonas’s mother held
the mortgage on the house, and Jonas stated he was worried her credit would be
ruined if he did not keep paying the mortgage payments.
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appellate attorney fees, we look to “the needs of the party seeking the award, the

ability of the other party to pay, and the relative merits of the appeal.” Id. We

determine each party should pay their own appellate attorney fees based on the

lack of evidence before the court concerning such request. Costs on appeal are

assessed to Jonas. We affirm the decision of the district court.

      AFFIRMED.
