                  IN THE COURT OF APPEALS OF IOWA

                                No. 18-0458
                           Filed February 6, 2019


IN RE THE MARRIAGE OF CASSIDEE SLIGER
AND JOSEPH SLIGER

Upon the Petition of
CASSIDEE SLIGER, n/k/a CASSIDEE PARKS,
      Petitioner-Appellee,

And Concerning
JOSEPH SLIGER,
     Respondent-Appellant.
________________________________________________________________


     Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



     The father appeals the denial of his petition to modify his child-support

obligation. REVERSED AND REMANDED.



     Mark Simons of Simons Law Firm, PLC, West Des Moines, for appellant.

     Benjamin Folladori of Marberry Law Firm, PC, Urbandale, for appellee.



     Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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POTTERFIELD, Presiding Judge.

       Joseph Sliger appeals from the district court’s denial of his petition to modify

his child-support obligation, arguing his reduction in income since the entry of the

2016 decree dissolving his marriage to Cassidee Sliger (now known as Cassidee

Parks) entitles him to a reduction pursuant to Iowa Code section 598.21C(2)

(2017). John asserts his reduction in income was not voluntary and the court was

wrong to deny him relief. See In re Marriage of McKenzie, 709 N.W.2d 528, 533

(Iowa 2006) (“One of the factors we consider in determining if we will use a parent’s

earning capacity, rather than a parent’s actual earnings, in order to meet the needs

of the children and do justice between the parties is whether the parent’s inability

to earn a greater income is self-inflicted or voluntary.”). Cassidee asks that we

affirm the district court’s ruling and award her appellate attorney fees.

       We review a child-support modification action de novo.                 Id. at 531.

“Although we give weight to the findings of fact made by the district court,

especially as to the credibility of witness, we are not bound by those findings.” Id.

       Modification. As part of the parties’ stipulated dissolution decree, Joseph’s

child-support obligation was calculated at $800 per month—based upon his annual

income of approximately $42,000 and imputing income of $28,000 to Cassidee.

Then in October 2017,1 Joseph, who had worked as a detention officer at a local

jail for a number of years, got into a verbal altercation with an inmate. During the

altercation, Joseph removed his shirt and suggested he and the inmate fight. As


1
  Joseph’s change in employment took place after he filed the petition to modify. At the
trial on the petition, Joseph’ verbally moved to amend the petition to include the change in
employment as a ground for modification, Cassidee did not object and the district court
granted the motion.
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a result of the incident, Joseph’s boss recommended he be fired. Joseph appealed

the recommendation, but the sheriff determined Joseph did not have the

temperament to work as a detention officer. Joseph was given the option to submit

his resignation in lieu of termination, and he did so. Within a few days, Joseph

began working at a private landscaping company, where he earns $12 per hour;

the work is seasonal. At the trial on the petition to modify, Joseph testified he

expects his new annual income to be $24,888, including the unemployment

benefits he receives during the off-season.

       The district court denied Joseph’s request to modify his child-support

obligation, noting that while Joseph now earns much less than he earned before,

“Joseph’s voluntary acts taken during the course of his prior employment are an

impediment to modification. His children’s need for sufficient support is unabated,

and Joseph remains responsible for that support.” In reaching this conclusion, the

court stated:

       Joseph’s resignation from the position in question was a direct result
       of his elective on-the-job conduct. Joseph may not have intended to
       deprive his children of support. But his elective conduct that led to
       his resignation evidences a reckless disregard by Joseph for his
       children’s well-being because he failed to consider the monetary
       consequences of his actions.

The court is to consider whether a parent’s reduction in income is voluntary. See,

e.g., In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993). Moreover, a

parent is not free to make choices without regard to his or her obligation to their

children. See McKenzie, 709 N.W.2d at 534. But modification is not denied in all

cases when the noncustodial parent’s income decreases. See, e.g., In re Marriage

Walters, 575 N.W.2d 739, 741 (Iowa 1998) (finding a noncustodial parent’s
                                           4


reduction in income and earning capacity that was the result of his voluntarily

criminal activity was not done with an improper intent to deprive his children of

support); Foley, 501 N.W.2d at 500 (finding that an obligor’s reduction in income

due to termination of employment for insubordination was not voluntary or self-

inflicted); Boquette v. Boquette, 247 N.W. 255, 256 (Iowa 1933) (determining an

obligor’s demotion with resulting lower salary justified reduction of support

obligation); Nicolls v. Nicolls, 235 N.W. 288, 289 (Iowa 1931) (finding the discharge

from employment and inability to obtain a job with comparable pay justified

reduction of support obligation); In re Marriage of Hackett, No. 17-1051, 2018 WL

2727757, at *5–6 (Iowa Ct. App. June 6, 2018) (finding the district court erred in

refusing to modify child-support obligation after father was terminated from his

employment for continued misuse of the company credit card after being warned

by his employer and where father now earned approximately half of his former

salary); In re Marriage of Knust, No. 16-1664, 2017 WL 3283301, at *1–2 (Iowa Ct.

App. Aug. 2, 2017) (concluding the father’s decision to drive while intoxicated,

which resulted in his transfer to a lower paying job, did not qualify as a self-inflicted

or voluntary reduction of income that prevented the reduction of his child-support

obligation); In re Marriage of Blum, 526 N.W.2d 164, 166 (Iowa Ct. App.1994)

(finding the reduction in income was not self-inflicted or voluntary where the

noncustodial parent lost his job in Harlan, Iowa, and refused to move to Denison

to take a higher paying job as he wanted to stay in Harlan where his children lived);

In re Marriage of Drury, 475 N.W.2d 668, 672 (Iowa Ct. App.1991) (finding an

honorable discharge from military and concomitant loss of military pay for failure

to comply with weight limits was not voluntary or self-inflicted); In re Marriage of
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Fidone, 462 N.W.2d 710, 712 (Iowa Ct. App.1990) (holding a noncustodial parent’s

refusal to accept relocation as an alternative to discharge did not constitute a self-

inflicted reduction in salary for purposes of determining whether child support

provisions of divorce decree should be modified; where relocation would involve

move of 1200 miles, there was a possibility of further layoffs at new location, and

he wanted to remain close to his family).

       We believe this situation is similar to those cited above, where our court and

the supreme court have refused to continue child support at a level that has

become unrealistic as a result of a parent’s actions. Nothing in the record supports

a finding Joseph undertook his actions with the intent to deprive his children of

support. And though Joseph’s current financial status is a result of his voluntary

actions, some consideration of ability to pay is necessary. See Walters, 575

N.W.2d at 743 (“While we realize our decision to reduce [the parent’s] support

obligation will impact the parties’ children, we must base our decision on reality

rather than an unattainable utopia.”).

       We conclude Joseph’s altercation with the inmate “does not qualify as a

self-inflicted or voluntary reduction of income that would justify using his former

salary in setting child support payments.”             Foley, 501 N.W.2d at 500.

Consequently, we reverse the district court’s denial of Joseph’s petition to modify

his child-support obligation. We remand for the obligation to be recalculated using

the parties’ current incomes.2




2
  We note that Cassidee encouraged the court to use imputed income for both her and
Joseph rather than either of their actual incomes. Pursuant to Iowa Court Rule 9.11(4),
“The court shall not impute income unless a written determination is made that, if actual
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       Appellate Attorney Fees. Cassidee asks that we award her appellate

attorney fees, which is within our discretion. See In re Marriage of Sullins, 715

N.W.2d 242, 255 (Iowa 2006). “Factors to be considered in determining whether

to award attorney fees include: ‘the needs of the party seeking the award, the ability

of the other party to pay, and the relative merits of the appeal.’” Id. (citation

omitted).

       While Joseph earns more than Cassidee does, he has also been successful

on appeal. We decline to award Cassidee appellate attorney fees.

       REVERSED AND REMANDED.




earnings were used, substantial injustice would occur or adjustments would be necessary
to provide for the needs of the child(ren) or to do justice between the parties.”
