                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-2100
                              Filed August 17, 2016


IN RE THE MARRIAGE OF AMETHYST NELSON
AND RYAN NELSON

Upon the Petition of
AMETHYST NELSON,
      Petitioner-Appellant,

And Concerning
RYAN NELSON,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.




      Amethyst Nelson appeals from an order modifying the child-support

provisions of the decree dissolving her marriage to Ryan Nelson. AFFIRMED.




      Barry S. Kaplan of Kaplan & Freese, LLP, Marshalltown, for appellant.

      Ryan S. Nelson, Marshalltown, appellee pro se.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Amethyst Nelson appeals from the order modifying the child-support

provisions of the decree dissolving her marriage to Ryan Nelson. She argues

Ryan 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.

       Ryan and Amethyst divorced in June 2013. They agreed Amethyst would

receive physical care of their three children. At the time of the dissolution, Ryan

worked as a supervisor at Packaging Corp. of America, where he had been

employed for fifteen years and was earning approximately $60,000 per year.

Based on this income, the parties agreed Ryan would pay Amethyst $1100 per

month in child support.

       In August 2014, Ryan quit his position at Packaging Corp. because he

worked the third shift and believed his job required him to work excessive hours,

both of which prevented him from spending time with his children. Thereafter,

Ryan worked at Inland Truck Parts and Service, earning $15.35 per hour as a

mechanic.

       In June 2015, Ryan requested administrative modification of his child-

support obligation pursuant to Iowa Code chapter 252H (2015). His request was

denied. Ryan then requested a chapter 252H hearing for modification of a child-

support order, stating in part:

             When the order was originally set, I worked nights as a
       supervisor and a lot of overtime, so my income was higher.
       Because of my work schedule at the time, I rarely saw my kids.
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       Because of this, I decided I needed to make a lifestyle change and
       get a daytime job so I could be with them as much as I could. I love
       my kids and want to spend as much time with them as possible.
       My new hourly wage is much less and overtime offered is rare. The
       time I get with my kids is most important, so I am trying to adjust to
       my new, limited financial situation. Right now, more than half of my
       income is going to [Amethyst].

       In October 2015, approximately one month after asking for a review of his

support obligation, Ryan left his job at Inland to begin a five-week program to

train as an Emergency Medical Technician. However, he left the program after

three weeks to begin a new job at Kapaun & Brown, earning twelve dollars per

hour as a fabricator and installer, which he believed would “be better for [his]

family.” Though the position paid less than he had been earning at Inland, Ryan

believed that “[s]ometimes you’ve got to go backwards to go forward” and “[i]n

the long run” it would be “[a] better paying position.” He told the court: “I [made]

my career changes to better myself and my family for the future . . . yes, I took a

lower-paying job as of now, but in the future it will be a much better paying job,

and I can further support my children better.” He is eligible for performance-

based raises in his new job, though he did not know how much his raises would

be or when he would receive them.

       Following a hearing in December 2015, the district court entered its order

modifying Ryan’s support obligation. The court found Ryan did not reduce his

income with the intention of reducing his support obligation; it found credible

Ryan’s claim that he reduced his income with the hope of improving his position

in the future, as well as the position of his family, noting that Ryan was thirty-six

years old and had thirty or more years left to earn. On this basis, the court found

that it was “reasonable” for Ryan to change his employment in order to improve
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“his overall future lifestyle” and that Ryan could reasonably believe that doing so

would improve his long-term earning capacity. Amethyst appeals.

       II. Scope and Standard of Review.

       We review orders modifying child support de novo. See In re Marriage of

McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the

trial court’s fact-findings, especially those concerning witness credibility, though

we are not bound by them. See id. “We recognize that the district court ‘has

reasonable discretion in determining whether modification is warranted and that

discretion will not be disturbed on appeal unless there is a failure to do equity.’”

See id. (quoting In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).

       III. Modification of Child Support.

       Before the court can modify a child-support order, the party seeking

modification must prove by a preponderance of the evidence that circumstances

have changed substantially since the order’s entry. See Walters, 575 N.W.2d at

741. The following criteria apply:

       (1) there must be a substantial and material change in the
       circumstances occurring after the entry of the decree; (2) not every
       change in circumstances is sufficient; (3) it must appear that
       continued enforcement of the original decree would, as a result of
       the changed conditions, result in positive wrong or injustice; (4) the
       change in circumstances must be permanent or continuous rather
       than temporary; (5) the change in financial conditions must be
       substantial; and (6) the change in circumstances must not have
       been within the contemplation of the trial court when the original
       decree was entered.

Id. (quoting In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983)).

       There is no dispute that the change in Ryan’s income would qualify as a

substantial change in circumstances for the purposes of modifying the child-
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support order. See Iowa Code § 598.21C(2)(a) (stating “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”). Voluntariness in diminished earning capacity may be an

impediment to modification. See Walters, 575 N.W.2d at 741 (stating a support

order may not be modified based on a decrease in income that is self-inflicted or

voluntary). “[P]arents who reduce their income through an improper intent to

deprive their children of support or in reckless disregard for their children’s well-

being are not entitled to a commensurate reduction in child support payments.”

Id. (citation omitted).   Here, the district court found Ryan did not reduce his

income with an improper intent to deprive his children of support, and substantial

evidence supports that finding. However, the absence of intent to deprive the

children of support does not automatically entitle a parent to modification of child

support. See McKenzie, 709 N.W.2d at 533-34. We decide to grant or deny a

request for modification depending on the unique circumstances of each case.

See In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct. App. 1995).

       Modification is appropriate on the facts before us. Ryan did not leave a

higher-paying position at Packaging Corp. for a lower-paying job at Inland in

order to deprive his children of support but rather because it carried a non-

monetary cost—a work schedule that limited his ability to see his children—while

the new position afforded him better hours and more time to spend with his

children. See, e.g., In re Marriage of Mylan, No. 07-1084, 2008 WL 509081, at

*1 (Iowa Ct. App. Feb. 27, 2008) (finding reduction of a child-support obligation

was not foreclosed by the father’s voluntary reduction in income where the
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father’s previous employment required him to work between fifty-five and sixty

hours per week, including weekends, and his new position—though it paid less—

was limited to forty-hour workweeks with weekends off). Nor did he reduce his

income with malicious intent when, after quitting his job at Inland to train in a new

field, he was offered and he accepted a position that paid less than Inland; Ryan

believed the new job had potential to provide him with greater earnings, which

would benefit his family in the long-run.

       Amethyst argues modification is not appropriate because Ryan voluntarily

left a higher-paying position for jobs that paid less money, citing McKenzie, 709

N.W.2d at 533, in support of her argument. In that case, the father reduced his

earnings when he took a lower-paying job after moving out of state with his

girlfriend. See McKenzie, 709 N.W.2d at 533. The supreme court found no

reason to doubt the father’s claim that the reduction in income was not motivated

by any desire to deprive his children of support but rather by a desire to be with

his girlfriend. See id. However, the court refused to base a decision to modify

solely on the purity of the father’s intent, stating that to do so would place the

father’s interests above those of the children. See id. at 533-34. Ultimately, the

McKenzie court denied modification because strict application of the child

support guidelines based on the father’s actual earnings would result in a

substantial injustice between the parties, and therefore, the court instead used

the father’s earning capacity to calculate his child-support obligation. See id. at

534.

       Amethyst also cites In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa

2003), to support her argument against modification. In that case, the trial court
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calculated the father’s child-support obligation based on the father’s pension

benefits, which it treated as income. See Duggan, 659 N.W.2d at 562. Because

it was error to do so, the father requested the child support be recalculated based

on his actual earnings, which would have been zero dollars due to his retirement.

See id. The supreme court held a it would be inappropriate to do so because the

father “offered no reason for his failure to obtain employment other than his

desire to be retired.” See id. The court further found the father did not suffer

from any ailments or disabilities that would prevent him from earning income as

he did before his retirement. See id. It thereby determined the father’s choice to

remain unemployed was voluntary. See id.

       The facts of McKenzie and Duggan are distinguishable from the present

case. Although the fathers in those cases may have lacked the intent to deprive

their children when they voluntarily reduced their earnings, they did so out of their

own self-interest and without regard for their children’s needs.         In contrast,

Ryan’s reasons for reducing his income are not only devoid of an intention to

deprive his children of support, he did so with his children’s best interests in

mind. Ryan first reduced his income when he left a high-paying job with hours

that prevented him from spending time with his children. He again reduced his

income in order to better his position and that of his family in the future, believing

that his new job would afford him that opportunity. Although Ryan is capable of

working jobs that may pay more, those jobs would require he sacrifice time with

his children or a more lucrative future in exchange for present earnings—both of

which would be to the children’s detriment. Furthermore, there is no finding that

a substantial injustice would occur by using Ryan’s actual earnings to calculate
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his child support, and on the scant record made in the district court, there is

nothing on which we can base such a finding.

      We agree that Ryan has shown a substantial change in circumstance that

warrants modification of his child-support obligation. Accordingly, we affirm.

      AFFIRMED.
