                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1664
                              Filed August 2, 2017


IN RE THE MARRIAGE OF SHANEE RAY KNUST
AND KEVIN LESTER KNUST

Upon the Petition of
SHANEE RAY KNUST,
      Petitioner-Appellant,

And Concerning
KEVIN LESTER KNUST,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Lucas County, Dustria A. Relph,

Judge.



      The mother appeals from the district court’s order temporarily reducing the

monthly child support owed by the father. AFFIRMED.



      Alan M. Wilson of Miles Law Firm, Corydon, for appellant.

      Jenna K. Lain of The Law Office of Jenna K. Lain, P.L.L.C., Corydon, for

appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

       Shanee Knust appeals from the district court’s order temporarily reducing

the amount of monthly child support owed by the father, Kevin Knust. Shanee

maintains the district court was wrong to decrease Kevin’s child support

obligation after he was transferred to a lower paying job as a result of his

conviction for operating while intoxicated. Kevin’s annual salary decreased from

approximately $93,000 to $51,688. Shanee claims the court should not have

modified his obligation based on his lower salary because his inability to pay the

higher amount is self-inflicted and the result of his voluntary conduct of driving

while drunk. 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.”). Our scope of review of a

child support modification action is de novo.     In re Marriage of Walters, 575

N.W.2d 739, 740 (Iowa 1998).

       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. However, modification is

not denied in all cases when the noncustodial parent’s income decreases. See,

e.g., Walters, 575 N.W.2d at 741 (finding a noncustodial parent’s 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); In re

Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993) (finding that an obligor’s

reduction in income due to termination of employment for insubordination was
                                         3

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 Blum,

526 N.W.2d 164, 166 (Iowa Ct. App.1994) (finding 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 was not

considered a self-inflicted or a voluntary reduction in salary); 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 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).

       Even though Kevin’s current financial status is a result of his voluntary

criminal action, “some consideration of his earning capacity and ability to pay is

necessary.”   Walters, 575 N.W.2d at 743.       Kevin’s “reduction in income and

earning capacity is the result of his criminal activity which, although voluntary,
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was not done with an improper intent to deprive his children of support.” 1 Id.

While the reduction of support “will impact the parties’ children, we must base our

decision on reality rather than an unattainable utopia.” Id.

       Kevin’s decision to drive while intoxicated “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. We believe this

situation is similar to those cited above, where our court and the supreme court

has refused to continue child support at a level that has become unrealistic as a

result of a parent’s actions.         Consequently, we affirm the district court’s

temporary modification of Kevin’s child support obligation.

       AFFIRMED.




1
  In its ruling, the district court stated, “Both [parties] also seem to acknowledge that
[Kevin] did not have an improper intent to deprive his children.” In Shanee’s appellate
brief, she claims Kevin “clearly acted in reckless disregard for his children’s well-being”;
she does not maintain Kevin had an improper motive for his action.
