                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1798
                             Filed October 14, 2015


IN RE THE MARRIAGE OF PETER A. EIKAMP
AND LISA EIKAMP

Upon the Petition of
PETER A. EIKAMP,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
LISA EIKAMP,
      Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Michael J. Moon,

Judge.



      Peter Eikamp appeals, and Lisa Eikamp cross-appeals, from a

modification order. AFFIRMED AS MODIFIED AND REMANDED.




      Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellant.

      Christy R. Liss of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.




      Heard by Doyle, P.J., Eisenhauer, S.J.,* and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

      Peter Eikamp appeals the denial of his petition to modify the child custody

and support provisions of the decree dissolving his marriage to Lisa Eikamp. He

contends joint physical care is not in the children’s best interests. On cross,

appeal, Lisa contends the court erred in calculating Peter’s child-support

obligation when it granted her counterclaim for modification. Lisa also requests

she be awarded appellate attorney fees.

      I. Background Facts and Proceedings.

      The parties’ marriage was dissolved in May 2013. The decree dissolving

the marriage incorporates the parties’ stipulation regarding the issues to be

determined in the dissolution proceeding.       Among other things, the parties

stipulated to joint physical care of their three minor children and agreed neither

party would pay child support. While the stipulation states the parties anticipated

“they will each have the children approximately 50% of the time,” neither the

stipulation nor the dissolution decree further specify the terms of custody

arrangement.

      Although the parties envisioned splitting time with the children, this did not

happen immediately following the dissolution. Exactly what occurred between

June and November 2013 is unclear.          Peter testified the children resided

primarily with him in the months following the dissolution and he occasionally

stayed at Lisa’s apartment when the children were in her care at her request. In

his version of events, he assumed the role of primary caretaker because Lisa

was experiencing emotional difficulties and instability in the wake of the divorce.

He agreed they stayed at each other’s residences with the children on occasion,
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but stated this was because Lisa did not want the responsibility of the having the

children on her own.

       In contrast, Lisa testified she was not struggling prior to November 2013.

In her version of events, the parties continued to reside together with the children

following the dissolution even though she obtained an apartment. According to

Lisa, she primarily stayed with Peter and the children at the marital residence,

although occasionally they stayed at her apartment. Lisa admits Peter was never

clear about the status of their relationship following the divorce but she believed

they “had the probability of getting back together.”

       What is clear is that things changed for the worse in November 2013.

Peter’s grandmother passed away, and he did not allow Lisa to attend the

funeral. At that point, Lisa realized her relationship with Peter was over and, in

her own words, “things kind of started to spiral down.” Lisa began to engage in

self-harming behavior by cutting herself, and concerns were expressed regarding

her suicidal ideation and alcohol use.

       Lisa was voluntarily admitted to Covenant Medical Center for observation

in November 2013 and discharged two days later.              She was prescribed

medication but believes she was overmedicated. She did not feel like herself,

and her self-harming behavior worsened. Because she did not feel stable upon

discharge, Lisa did not exercise her full rights under the child custody provisions

of the decree. Instead, she limited the time she spent with the children to visits

supervised by her parents.

       Lisa was hospitalized again in January 2014 after she lost control of her

car during a snowstorm and drove into a ditch. The sheriff’s deputy who assisted
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Lisa was concerned she was a danger to herself and took her to Covenant

Medical Center. Lisa was admitted for observation and discharged the next day.

       Lisa was admitted to Covenant Medical Center a third time in February

2014 after going to Peter’s house at 10:00 p.m., intoxicated and bleeding from a

self-inflicted cut on her arm. Lisa remained at Covenant for one week before she

was discharged. Upon her discharge, she changed psychiatrists and medication

and began feeling better.

       On the night of March 8, 2014, Lisa went to Peter’s home, where the

children were staying. She was distraught because Peter had not returned her

telephone calls or text messages for more than two hours. While at the home,

she took a knife from the kitchen and held it to her chest, threatening suicide.

Although Peter took the knife from her, two of the children heard Lisa tell Peter to

give her keys back so she could go kill herself. Lisa returned home and called

law enforcement to falsely report Peter had physically assaulted her. Lisa was

arrested one week later and charged with two counts of child endangerment. At

the time of trial, those charges were still pending.

       On March 14, 2014, Peter filed a petition seeking to modify the child

custody and support provisions of the dissolution decree, requesting he be

granted physical care of the children. Lisa counterclaimed seeking modification

of the provisions of the decree relating to child support, medical support, and the

postsecondary education subsidy.

       After Peter filed the petition to modify, Lisa requested the child custody

provisions of the decree be implemented. Since then, the parties have alternated

physical care of the children on a weekly basis.
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      The matter came to a trial in October 2014. The district court entered its

order two days later. It dismissed Peter’s petition to modify, sustained Lisa’s

counterclaims to modify the child-support obligation and postsecondary

education subsidy, and awarded Lisa $2500 in attorney fees. Peter filed a timely

notice of appeal.

      II. Scope and Standard of Review.

      We review modification rulings de novo.       See Iowa R. App. P. 6.907.

Although we make our own findings of fact, we give weight to the trial court’s

findings regarding witness credibility but are not bound by them. Iowa R. App.

P. 6.904(3)(g). Our overriding consideration is the children’s best interests. Iowa

R. App. P. 6.904(3)(o).

      III. Modification of Child Custody.

      Peter appeals the portion of the order dismissing his petition to modify the

child custody and support provisions of the decree.       As is often said, “once

custody of children has been fixed it should be disturbed only for the most cogent

reasons.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

      “To change a custodial provision of a dissolution decree, the
      applying party must establish by a preponderance of evidence that
      conditions since the decree was entered have so materially and
      substantially changed that the children’s best interests make it
      expedient to make the requested change.                 The changed
      circumstances must not have been contemplated by the court when
      the decree was entered, and they must be more or less permanent,
      not temporary. They must relate to the welfare of the children. A
      parent seeking to take custody from the other must prove an ability
      to minister more effectively to the children’s wellbeing.”

Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).
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       Peter contends that since the decree was entered, “Lisa undertook a

pattern of disruptive and unsafe behavior that severely impaired her ability to

parent her children in the role of joint custodian.” We agree Lisa’s ability to

parent the children was impaired by her mental health. However, as the district

court found, the changes in Lisa’s behavior “were temporary in nature and not

permanent or continuous.” There is no evidence of any mental health issues that

impaired Lisa’s ability to parent before November 2013. At the time of trial, Lisa

testified she was taking medication for depression and anxiety, but no evidence

of Lisa’s current mental health diagnosis or how it impairs her ability to safely and

effectively parent the children was offered or received. Rather, in the six months

leading up to trial, the children were in Lisa’s care every other week. At trial,

Peter agreed Lisa was currently caring for the children appropriately and the

children had not been placed in harm’s way due to Lisa’s recent behavior. The

parties were able to co-parent effectively during this period, with both parents

communicating regarding the children’s activities and their welfare.

       When looking at Lisa’s behavior throughout the children’s lives, it appears

the four-month period from November 2013 until March 2014 was an anomaly.

With the right dose of the right medication and therapy to address Lisa’s

underlying depression and anxiety, she is again providing the quality care for the

children she provided during the marriage.        The change exhibited between

November 2013 and into March 2014 was temporary, rather than permanent.

       Because the evidence does not support Peter’s claim this is a permanent

change, we need not address the question of whether Peter has an ability to

minister more effectively to the children’s well-being.     See In re Marriage of
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Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000) (noting that in addition to

proving a substantial change of circumstances supporting modification, the

moving party “must also prove . . . an ability to minister more effectively to the

well-being of the parties’ children”). We affirm the dismissal of Peter’s petition to

modify the dissolution decree.

       IV. Modification of Child Support.

       On cross-appeal, Lisa contends the district court erred in calculating the

amount of Peter’s child support obligation.      She also requests Peter’s child

support obligation begin on July 15, 2014, rather than on November 1, 2014, as

ordered by the district court.

       While the child support provisions of a dissolution decree are typically final

as to the circumstances existing at the time of dissolution, the court may modify

child support when there has been a substantial change in circumstances. Iowa

Code § 598.21C(1) (2013). In determining whether there has been a substantial

change in circumstances, we consider all relevant factors, “including changes in

employment, income, earning capacity, health, and medical expenses of a party.

Of course, the changed circumstances must be material and substantial,

essentially permanent, and not within the contemplation of the court at the time of

the decree.” In re Marriage of Sisson, 843 N.W.2d 866, 870-71 (Iowa 2014)

(citation omitted). A substantial change exists if “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.” Iowa Code § 598.21C(2)(a).

       There is nothing in the record of the dissolution proceedings regarding the

parties’ earnings at the time of dissolution. However, the evidence presented at
                                              8


the modification hearing clearly shows the disparity in the parties’ earnings at the

time of dissolution would have required Peter to pay Lisa child support under the

child support guidelines. While Lisa agreed to forgo child support in the parties’

stipulation,1 which was incorporated into the dissolution decree, “[p]arents cannot

lightly contract away or otherwise modify child support obligations.”               In re

Marriage of Mihm, 842 N.W.2d 378, 384 (Iowa 2014).

         A variation from child support guidelines is prohibited “‘without a record or

written finding, based on stated reasons, that the guidelines would be unjust or

inappropriate.’” Id. at 385 (quoting Iowa Code § 598.21B(2)(d)).

         If the parties want the district court to deviate from the child support
         guidelines, and also want to avoid subsequent modification of that
         award based on an evaluation of changed circumstances or the ten
         percent deviation, counsel and the district court need to insure that
         the dissolution decree explains the reasons for the deviation and
         that those reasons are factually and legally valid.              Absent
         compliance with the statute and our rules, there is no reason to
         assume that the initial child support amount set forth in the decree
         has any proper basis, or that it should be used as the basis for
         subsequent modification proceedings.

Id. (citations omitted).

         Here, neither the stipulation nor the dissolution decree provides any

reason for a variation from the child support guidelines. The parties’ stipulation

merely states “[t]hat based upon the respective income of the parties and the

joint physical care arrangement, no child support shall be paid from one person

to the other.” Because there was no basis for the decree to deviate from the

child support guidelines, it is not a proper basis on which to base a decision on

modification of child support. See id. at 386. Therefore, we may modify if a


1
    Lisa was not represented in the dissolution proceedings.
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substantial change in circumstances since the entry of the underlying decree

warrants modification of child support. Id. This includes a modification based on

Iowa Code section 598.21C(2)(a) for a variance of “ten percent or more from the

amount which would be due pursuant to the most current child support

guidelines.” Peter does not contest there is a variation of more than ten percent

from the child support awarded in the decree to what he would pay under the

guidelines.

      The only question presented to us in this appeal is the amount of the

parties’ income and the date Peter’s child support obligation should begin. For

purposes of calculating child support, the district court determined Peter’s annual

income to be $108,000 and Lisa’s to be $30,000, making Peter’s monthly child

support obligation $1210.25 and Lisa’s obligation $416.12. The court ordered

Peter to pay Lisa the $794.13 difference in obligations each month, with

payments beginning on November 1, 2014.

      Lisa argues it is unreasonable and inequitable to impute a $30,000 annual

income to her based on her business’s earnings. She claims the business only

earned that much in 2012 when the parties were married and Peter’s farm

income was infused into her business. She further claims the 2012 earnings

were atypical and every other year the business “had usually been in the red

from its inception in 2006.” She asks this court to recalculate the child support

obligation using what she estimated to be her 2014 expected income of $12,000

or a three-year average of income from 2012 through 2014 in the amount of

$18,230.
                                         10


       In 2012, Lisa’s business had its best year, earning $32,232. In 2013, she

earned only $10,460. Between January 1 and October 9 of 2014, Lisa had

earned $15,285.21. Extrapolating earnings from this figure, the court estimated

her 2014 earnings were expected to be $20,380. We find this $20,380 figure to

be the proper basis on which to calculate Lisa’s child support obligation.

       Lisa also argues the court erred in finding Peter’s annual income is

$108,000. Peter is employed as an insurance agent. Before April 2014, he

received a monthly income plus commissions and bonuses for his work. In April

2014, his salary structure changed to increase his monthly salary to $9000 but

eliminate commissions and bonuses.

       In 2013, he earned approximately $102,957 as an insurance agent. 2

Beginning in April 2014, his annual salary is $108,000. Peter received $7003.48

in bonuses and $783.76 in commissions in 2014 before his salary structure

changed. Lisa argues Peter’s 2014 salary should be estimated at $125,000 to

include any bonuses and commissions he earned before April of that year.

However, the bonuses and commissions were received when Peter earned a

lower salary; the higher salary Peter now earns compensates him for the lack of

bonus and commissions. It would be misrepresentative to attribute to Peter the

higher salary earned after April 2014 for the entirety of 2014, and add to it the

bonuses and commissions Peter received prior to April 2014 when he was

earning a lower salary. We concur in the district court’s finding Peter’s annual

salary is $108,000.

2
 During the marriage, Peter also farmed land owned by Lisa’s grandfather. Because he
ceased this work when the parties divorced, a discussion of Peter’s farming income is
not relevant.
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       We modify the child support provisions to provide Peter should pay as his

child support obligation the difference between the amount of child support due

and owing from him as calculated by the district court in the modification order

and the amount due and owing from Lisa based upon an annual income of

$20,380.   We remand to the district court to calculate Peter’s child support

obligation consistent with this opinion.

       Lisa also contends the court erred in ordering the child support obligation

begin on November 1, 2014. She requests this court modify the order to provide

it begin on July 15, 2014. “The trial court has the discretion to decide if child

support payments will begin from the petition filing date or from the date of the

modification order.” In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.

App. 1992). Finding no abuse of discretion, we affirm the portion of the order

requiring child support to begin on November 1, 2014.

       V. Appellate Attorney Fees.

       Finally, Lisa requests we award her $4000 in appellate attorney fees and

tax the costs of the appeal to Peter. The decision to award appellate attorney

fees is within this court’s discretion. See Iowa Code § 598.36. In making this

decision, we consider the needs of the party requesting appellate attorney fees,

the ability of the other party to pay, and whether the party was obligated to

defend the trial court’s decision on appeal. In re Marriage of Krone, 530 N.W.2d

468, 472 (Iowa Ct. App. 1995).

       Because Peter earns significantly more than Lisa and Lisa was obligated

to defend the court’s child custody determination on appeal, we award Lisa

$4000 in appellate attorney fees.
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      VI. Conclusion.

      We affirm the order denying Peter’s petition to modify child custody and

granting Lisa’s counterclaim for modification of child support. We modify the

child support calculation and remand. We do not retain jurisdiction. Costs of this

appeal are taxed to Peter.

      AFFIRMED AS MODIFIED AND REMANDED.
