                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1908
                              Filed October 29, 2014


IN RE THE MARRIAGE OF TRACY LEE GINGER
AND TANYA L. GINGER

Upon the Petition of
TRACY LEE GINGER,
      Petitioner-Appellee,

And Concerning
TANYA L. GINGER, n/k/a TANYA L. ROHWER,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Chickasaw County, Richard D.

Stochl, Judge.



       Tanya Ginger appeals from the district court’s order modifying the

dissolution of marriage decree between her and Tracy Ginger. AFFIRMED IN

PART; REVERSED IN PART; REMANDED.



       Marion L. Beatty of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for appellant.

       Paul W. Demro of Correll, Sheerer, Benson, Engels, Galles & Demro,

P.L.C., Cedar Falls, for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                        2


VOGEL, P.J.

       Tanya Ginger appeals the district court’s order modifying the dissolution of

marriage decree between her and Tracy Ginger. She asserts four claims on

appeal faulting the district court for: (1) denying an increase in child support by

improperly deviating downward from the child support guidelines; (2) not ordering

Tracy to pay for all transportation costs for the children’s visitation during the

summer months; (3) improperly concluding Tracy was not responsible for paying

for one of the minor children’s orthodontic braces; and (4) in denying Tanya trial

attorney fees. Tanya also requests the award of appellate attorney fees.

       With regard to Tracy’s child support obligation, we conclude the district

court improperly found there was no material change in circumstances, as the

adjusted figure deviates more than ten percent from Tracy’s current obligation

under the guidelines. As for the cost of transporting the children to and from the

summer visitation, Tracy shall be responsible for all such costs. Each party shall

be responsible for one-half of the costs not covered by insurance associated with

the orthodontic expenses. Although we conclude the court did not abuse its

discretion when declining to award Tanya trial attorney fees, we award Tanya

$2000 in appellate attorney fees. Consequently, we affirm in part and reverse in

part the decision of the district court, and remand for the calculation of Tracy’s

child support obligation.

I. Factual and Procedural Background

       Tanya and Tracy’s marriage in 1999 produced three children, all of whom

are still minors. A stipulation and decree of dissolution were filed on September

12, 2011. The parties have joint legal custody of the children with Tanya having
                                         3


physical care subject to Tracy’s reasonable rights of visitation. Under the original

decree, Tracy was entitled to alternate weekend visitations, one night each week

during the summer, and one extended week during the summer. Tracy was also

responsible for paying Tanya $930 each month in child support.

      At the time of dissolution, Tracy lived in Tripoli, Bremer County, and Tanya

lived in West Union, Fayette County, Iowa.        Tracy was employed at Kerry

Manufacturing in Fredericksburg, earning $63,000 each year.          In October of

2013, he accepted a job at Kerry Ingredients in Dallas, Georgia, which resulted in

a salary increase to $82,000, with the possibility of bonuses. Tracy testified the

cost of living in Georgia is much higher than in Iowa, and that this increased

salary did not actually result in an increase in disposable income.        He also

remarried, and his second wife earns $13.00 per hour and works forty hours

each week. Tracy pays for his health insurance for himself and the children but

does not have dental insurance. Tanya earns $24,544 each year at Dermal

Medical Equipment.

      Due to his move to Georgia, Tracy filed an application to modify the

visitation schedule on November 2, 2012. Tanya agreed the original decree

should be modified with respect to visitation, though she requested the court also

modify the decree to increase Tracy’s child support obligation, as well as

establish provisions for the transportation to and from visitation.       She also

requested trial attorney fees. On August 8, 2013, following a contested hearing

on July 10, the district court entered an order modifying the dissolution decree.

The court modified the transportation and visitation provisions, requiring Tracy to

be responsible for the transportation costs during the spring visit and the
                                         4


transportation to Georgia in the summer, with Tanya being financially responsible

for transporting the children back to Iowa at the end of their summer visit.

However, finding no substantial change in circumstances occurred as to child

support, the court denied Tanya’s request that Tracy’s child support obligation be

increased, as well as her request for attorney fees. The court further ordered

Tracy to enroll the children in a dental plan “as soon as it is available to him,” so

one of the children could be fitted with needed braces. Tanya appeals.

II. Standard of Review

       We review the modification of a dissolution decree de novo.             In re

Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995). However, we will not

disturb the trial court’s conclusion unless there has been a failure to do equity.

Id.

III. Child Support

       Tanya first asserts the district court improperly deviated downward from

the child support guidelines when denying her request to increase Tracy’s child

support obligation. She contends that Tracy’s substantially increased income

constituted a substantial change in circumstances warranting modification of his

child support obligation.

       A court may modify an order of child support when a substantial change in

circumstances has been shown, one which was not contemplated by the original

decretal court. In re Marriage of Maher, 596 N.W.2d 561, 564–65 (Iowa 1999).

The party seeking the modification must prove the change in circumstances by a

preponderance of the evidence. In re Marriage of Rietz, 585 N.W.2d 226, 229

(Iowa 1998). In determining whether there has been a substantial change, the
                                         5


court is to consider changes in the employment, earning capacity, income or

resources of a party, the remarriage of a party, and possible support of a party by

another person. Iowa Code § 598.21C(1)(a)–(l) (2011);1 see also In re Marriage

of Gehl, 486 N.W.2d 284, 287 (Iowa 1992).

       Pursuant to Iowa Code section 598.21C(2)(a), “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 . . . .” However, as our supreme court has held:

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




1
  Specifically, this section states courts should consider the following factors when
deciding whether a modification is warranted:
                a. Changes in the employment, earning capacity, income, or
       resources of a party.
                b. Receipt by a party of an inheritance, pension, or other gift.
                c. Changes in the medical expenses of a party.
                d. Changes in the number or needs of dependents of a party.
                e. Changes in the physical, mental, or emotional health of a party.
                f. Changes in the residence of a party.
                g. Remarriage of a party.
                h. Possible support of a party by another person.
                i. Changes in the physical, emotional, or educational needs of a
       child whose support is governed by the order.
                j. Contempt by a party of existing orders of court.
                k. Entry of a dispositional or permanency order in juvenile court
       pursuant to chapter 232 placing custody or physical care of a child with a
       party who is obligated to pay support for a child. Any filing fees or court
       costs for a modification filed or ordered pursuant to this paragraph are
       waived.
                l. Other factors the court determines to be relevant in an individual
       case.
Iowa Code § 598.21C(1)(a)–(l).
                                           6

Maher, 596 N.W.2d at 565 (noting further that “the district court has reasonable

discretion in determining whether modification is warranted, and we will not

disturb that discretion unless there is a failure to do equity”).

       According to Tanya’s child support worksheet, Tracy’s obligation with his

current income is $1302.56.2 This is a ten percent increase compared to Tracy’s

obligation of $930.00 under the original decree.         Consequently, a substantial

change in circumstances has occurred pursuant to the guidelines. See Iowa

Code § 598.21C(2)(a); In re Marriage of Guyer, 522 N.W.2d 818, 821 (Iowa

1994) (holding that an increase in salary, which resulted in a child support

obligation that increased from $1442 to $2514, constituted a substantial change

in circumstances, given the amount of child support varied by more than ten

percent from the amount owed under the original decree).

       Several other factors also counsel that Tracy’s child support obligation

should be modified. He has moved to Georgia and his salary is now $82,000

with the possibility of bonuses, an increase of $19,000 compared to his previous

income.    The record does not indicate the move and salary increase were

contemplated by the decretal court. See In re Marriage of Thielges, 623 N.W.2d

232, 235 (Iowa Ct. App. 2000) (holding mother’s move to North Dakota

constituted a substantial change in circumstances not contemplated by the

decretal court). Tracy is also remarried, and though his new wife’s income is not

substantial, she can nonetheless contribute to their living expenses. All of these

changes are permanent and continuous. See Maher, 596 N.W.2d at 565. Other


2
 The district court stated Tracy’s obligation under the guidelines is $934. The court did
not explain how it arrived at this finding.
                                         7


than Tracy’s testimony that the cost of living is higher in Georgia, there is no

support in the record for a downward deviation from the guidelines. Therefore,

we conclude Tracy’s child support obligation should be modified to comply with

the current guidelines. Consequently, the district court failed to do equity when

determining a substantial change in circumstances did not occur, and we remand

the case back to the district court to calculate Tracy’s child support obligation

under the current guidelines. See id.

IV. Transportation Costs

       Tanya also argues the district court improperly concluded Tracy should

not have to pay all of the costs of transporting the three children to and from his

home for his visitation in the summer months. Tracy’s income is nearly four

times that of Tanya’s. Though we understand the need to relocate for one’s

career, the move was nonetheless Tracy’s sole decision, and given the parties’

relative income, the resulting cost of transporting the children should not fall on

Tanya.   We therefore conclude the district court failed to do equity when it

ordered Tanya to pay for the children’s transportation costs when the children

travel from Georgia back to Iowa. See generally In re Marriage of Beecher, 582

N.W.2d 510, 514 (Iowa 1998) (concluding that a downward departure from the

child support guidelines was not justified even though father was bearing eighty

percent of transportation costs for the children, noting that a move to California

was for his personal benefit). Consequently, Tracy will be responsible for all

transportation costs regarding the children’s visits to Georgia.
                                         8


V. Orthodontic Braces

       Tanya further claims the court improperly concluded Tracy was not

responsible for paying for the minor child’s orthodontic braces.         The court

ordered Tracy to obtain dental insurance as soon as it became available to him,

ostensibly so K.G. could be fitted for braces within a reasonable time. Tanya

requests Tracy “immediately” secure insurance or pay any out of pocket costs

associated with orthodontic care. We conclude that equity demands the parties

shall each pay one-half of the uncovered costs associated with the child’s

orthodontic care, regardless of whether Tracy has secured orthodontic insurance.

VI. Attorney Fees

       Tanya’s final claim asserts the district court should have awarded her trial

attorney fees. We review the district court’s decision on whether or not to award

attorney fees for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d

242, 255 (Iowa 2006). We consider the needs of the party making the request

and the ability of the other party to pay. Id. In light of these considerations, the

district court did not abuse its discretion when ordering each party to pay their

own attorney fees.

       Tanya also requests that we award her appellate attorney fees. An award

of appellate attorney fees is not a matter of right but rests within our discretion.

In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). In

determining whether to award appellate attorney fees, we consider the needs of

the party making the request, the ability of the other party to pay, and whether

the party making the request was obligated to defend the decision of the trial
                                        9

court on appeal. Id. After considering these factors, we award Tanya $2000 in

appellate attorney fees.

      Having reviewed Tanya’s arguments on appeal, we affirm the denial of

Tanya’s trial attorney fees. However, we reverse the court’s determination that

Tanya must pay for the children’s transportation costs from Georgia to Iowa, and

Tracy will be responsible for all such expenses. With regard to Tracy’s child

support obligation, we conclude a substantial change in circumstances occurred,

and we remand the case back to the district court for the calculation of Tracy’s

obligation under the current guidelines, with no downward deviation. The parties

shall each be responsible for one-half of the child’s uncovered orthodontic care.

      Costs assessed to Tracy.

      AFFIRMED IN PART; REVERSED IN PART; REMANDED.
