                   IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0331
                              Filed November 26, 2014


IN RE THE MARRIAGE OF BRENT JAMIE SMITH
AND JOLEEN RENEE SMITH

Upon the Petition of
BRENT JAMIE SMITH,
      Petitioner-Appellant,

And Concerning
JOLEEN RENEE SMITH,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Randy S.

DeGeest, Judge.



      Brent Smith appeals from the district court’s denial of his application to

modify child support. REVERSED AND REMANDED.




      Allen A. Anderson of Anderson Law Firm, Oskaloosa, for appellant.

      Greg A. Life of Life Law Office, Oskaloosa, for appellee.




      Considered by Danilson, C.J., and Vogel and Bower, JJ.
                                           2


DANILSON, C.J.

       Brent Smith appeals from the district court’s denial of his application to

modify child support. We reverse and remand for the district court to consider

Brent’s earning capacity, available assets, and ability to pay, as required by In re

Marriage of Walters, 575 N.W.2d 739, 743 (Iowa 1998).

       I. Background Facts.

       Brent Smith and Joleen Smith were formerly married. They had one child.

Their marriage was dissolved by decree on October 13, 2004. Under the decree,

the minor child was placed in Joleen’s physical care and Brent was ordered to

pay $351.27 per month in child support.

       On January 24, 2014, Brent filed a pro se motion to amend child support,1

asserting he was incarcerated in a medium security facility. He stated he had no

assets and was starting a job that would pay about fifty dollars per month “with

70% of that deducted (50% goes to child support and 20% to court ordered

restitution).” He asked that his support be based on his prison earnings.

       A hearing was held on January 31 at which Brent did not appear but was

represented by counsel. Evidence indicated Brent began serving a ten-year term

on November 27, 2012, with his tentative discharge date being March 12, 2017.

Joleen testified Brent had informed their fourteen-year-old child he would be




1
  In December 2013, the state’s child support recovery unit (CSRU) had received an
administrative request to modify child support pursuant to Iowa Code chapter 252H
(2013). According to governing rules, the CSRU gathered financial information,
calculated a child support guideline amount according to the parents’ actual incomes,
and notified the parties as to its determination. The calculation of the CSRU is not
binding, however, when a parent objects, as Joleen did here, and the district court hears
the matter as an original proceeding. Iowa Code §§ 252H.3(3), 252H.8(8).
                                          3


released “after New Year’s.”2 She testified Brent’s child support obligation was

set in the decree, at which time Brent was employed. She stated, “He stopped

going to work.”    The district court declined to modify Brent’s child support

obligation, finding “prior to his conviction on criminal charges and his

incarceration, [Brent] voluntarily left his employment.”

       Brent appeals, contending his support obligation should be based on his

actual earnings.

       II. Scope and Standard of Review.

       We review decisions in a child support modification action de novo. In re

Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). Our job is to examine

the entire record and decide anew the issues raised on appeal. In re Marriage of

Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998).

       III. Discussion.

       Iowa Code section 598.21C provides a court may modify child support

orders “when there is a substantial change in circumstances” considering several

enumerated factors, including “changes in employment, earning capacity,

income, or resources of a party.”      Iowa Code § 598.21C(1)(a).      The person

seeking modification of the decree with respect to child support has the burden to

show a substantial change in circumstances not contemplated by the trial court

when it made its original decision. Walters, 575 N.W.2d at 741. The burden

includes showing that continuation of the current order would create an injustice

because the change in circumstances is permanent or continuous.              Id.   A


2
 “She advised me he wrote a letter and stated he was going to get out sometime after
New Year’s.” She did not state when the letter was written or received.
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voluntary decrease in earnings, however, does not constitute a factor that would

support a modification of a parent’s support obligation. See In re Marriage of

Foley, 501 N.W.2d 497, 500 (Iowa 1993) (explaining “[t]he self-infliction rule

applies equitable principles to the determination of child support in order to

prevent parents from gaining an advantage by reducing their earning capacity

and ability to pay support through improper intent or reckless conduct”).

       Walters, 575 N.W.2d at 742,3 summarized prior cases in which the courts

considered whether an obligor’s incarceration constitutes a substantial change of

circumstances justifying the modification of a support obligation:

       In Vetternack, the father-obligor was incarcerated following his
       conviction for terrorism. [In re Marriage of] Vetternack, 334 N.W.2d
       [761,] 762 [(Iowa 1983)]. He filed a petition for modification,
       alleging that his incarceration constituted a substantial change in
       circumstances which justified reduction of his child support
       obligation. Our court upheld the district court’s denial of the
       requested modification, finding that the father had sufficient assets,
       $15,000 equity in his home, against which the support payments
       could be charged until his release from prison. Id. at 763.
               ....
               Our court of appeals has also considered whether
       incarceration constitutes a substantial change in circumstances. In
       re Marriage of Phillips, 493 N.W.2d 872 (Iowa Ct. App. 1992). In so
       doing, it extended our holding in Vetternack by denying a petition
       for modification for an incarcerated obligor who had no assets
       against which the support obligation could be charged. Phillips,
       493 N.W.2d at 878. The court found that the father’s incarceration
       did not constitute a substantial change in circumstances, noting that
       “[i]t would not be equitable to suspend his responsibility for his
       children while he is incarcerated.” Id. Before reaching this
       decision, the court carefully examined decisions from various
       jurisdictions and found them fairly evenly divided on the issue of
       whether incarceration warrants a reduction in an obligor’s child

3
  The Walters court concluded that an obligor’s decreased earning capacity following
release from prison is a factor to be considered in an action for modification of child
support. 575 N.W.2d at 743. (“We find that Douglas’ reduction in income and earning
capacity is the result of his criminal activity which, although voluntary, was not done with
an improper intent to deprive his children of support.”).
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       support obligation. The court acknowledged the fact that the father
       had no assets against which the obligation could be charged during
       his incarceration. The court, however, concluded that fact did not
       justify modification, noting that a “lack of assets should not serve as
       a shield against a child support obligor’s responsibilities.” Id. at
       877. Instead, the court relied heavily on the voluntariness of the
       father’s crime and his alleged reckless disregard for his children’s
       well-being. Id. at 877-78. While the court concluded that the
       father’s incarceration did not warrant reduction of his support
       obligation, it did state that upon his release from prison, “the
       monthly obligation can be adjusted as his financial situation then
       requires.” Id. at 879.

The Walters court, however, overruled the holding in Phillips that the obligor’s

lack of available assets to fulfill his support obligation while incarcerated is not a

consideration in a modification proceeding. Walters, 575 N.W.2d at 743.

       Here, the district court enforced the “self-infliction rule,” finding Brent’s

decrease in earnings was due to his own voluntary conduct. However, “some

consideration of [the obligor’s] earning capacity and ability to pay is necessary.”

Id. (emphasis added).

       Because the district court failed to consider the necessary factors of

Brent’s earning capacity, available assets, and ability to pay, we reverse and

remand for the appropriate analysis. Costs on appeal are assessed to appellee.

       REVERSED AND REMANDED.
