                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1621
                               Filed July 24, 2019


IN RE THE MARRIAGE OF BRANDY FLEMMING-JESS
AND MATTHEW FLEMMING

Upon the Petition of
BRANDY FLEMMING-JESS,
      Petitioner-Appellant,

And Concerning
MATTHEW FLEMMING,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.



      Brandy Flemming-Jess appeals from an order modifying the child-support

provisions of the decree dissolving her marriage to Matthew Flemming.

AFFIRMED.




      Erin M. Carr of Carr Law Firm, Des Moines, for appellant.

      David P. Kozlowski and David Barajas of Macro & Kozlowski, LLP, West

Des Moines, for appellee.



      Considered by Mullins, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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MAHAN, Senior Judge.

       Brandy Flemming-Jess appeals from an order modifying the child-support

provisions of the decree dissolving her marriage to Matthew Flemming.           She

argues Matthew is not entitled to a reduction of his child-support obligation

because he voluntarily reduced his income. Upon our de novo review, we agree

modification is appropriate under the facts of this case and we affirm.

I.     Background Facts and Proceedings

       Matthew and Brandy divorced in October 2014. They agreed Brandy would

receive physical care of their two children. At the time of the dissolution, Matthew,

a medical doctor, worked as a cardiologist and an electrophysiologist, and he was

earning in excess of $500,000 per year. Brandy was employed part-time as an

emergency medical technician, and she was earning less than $10,000 per year.

The parties agreed Matthew would pay Brandy $3500 per month in child support.

       In October 2015, Matthew suffered a cardiac arrest and diabetic seizure,

resulting in neurological dysfunction, including cognitive impairment, visual and

speech difficulty, and tremors.     Matthew engaged in therapy, and he was

eventually able to return to work with restrictions.      However, in June 2016,

Matthew’s employer, Mason City Clinic, informed him it was not able to

accommodate his restrictions. Matthew was also notified his hospital privileges

were not being reinstated. Matthew continued rehabilitation, but he was informed

it was unlikely he “could return to work.” Nevertheless, Mason City Clinic allowed

him to return to work with restrictions in October 2016. He was terminated in March

2017 after a peer reported him to the Iowa Board of Medical Examiners due to

concerns about his ability to practice medicine. Since then, Matthew applied for
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numerous positions but has received no interviews. Currently, his sources of

income are $7000 per month and $5000 per month from two untaxed, private

disability policies. Matthew applied for Social Security Disability; he was initially

denied those benefits, but if granted, those benefits would offset his private

disability benefits.

       Meanwhile, in 2016, Brandy suffered multiple strokes and is now medically

disabled. She receives Social Security Disability benefits in the amount of $17,364

per year.

       In August 2017, Brandy petitioned to modify the child support provisions of

the parties’ dissolution decree, alleging a substantial and material change in

circumstances in that she “is no longer able to work” and Matthew’s child support

obligation for an older child “has expired.” Matthew filed a counter-claim, alleging

a substantial and material change in circumstances in that his “income has

decreased to such extent as there now exists a ten-percent deviation from [his]

present child support obligation.” In March 2018, the district court entered a

temporary order modifying Matthew’s child support obligation to $2500 per month.

       In August 2018, following trial, the district court entered its ruling, denying

Brandy’s petition and granting Matthew’s request for a modification of child

support. The court modified the child support provisions to order Matthew to pay

$2193.22 per month to Brandy, pursuant to the child support guidelines. The court

ordered each party to pay their own attorney fees. Brandy appeals.

II.    Scope and Standard of Review

       We review orders modifying child support de novo. See In re Marriage of

McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give weight to the
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trial court’s fact-findings, especially those concerning witness credibility, though

we are not bound by them. See id. “We recognize that the district court ‘has

reasonable discretion in determining whether modification is warranted and that

discretion will not be disturbed on appeal unless there is a failure to do equity.’” Id.

(quoting In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998)).

III.   Modification of Child Support

       Brandy contends the district court erred in finding a decrease in Matthew’s

earning capacity and income and accordingly modifying his child-support

obligation.   Specifically, Brandy claims Matthew’s “decreased income is self-

inflicted or voluntary.” She argues Matthew “has not been diligent in obtaining

employment” and he “has made no lifestyle changes although his income has

decreased.”

       The district court may modify the child-support provisions of a dissolution

decree when there has been a “substantial change in circumstances.” Iowa Code

§ 598.21C(1) (2017); In re Marriage of Reitz, 585 N.W.2d 226, 229 (Iowa 1998).

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

preponderance of the evidence. In re Marriage of Michael, 839 N.W.2d 630, 636

(Iowa 2013). The following principles apply to modifications under section

598.21C:

       (1) there must be a substantial and material change in the
       circumstances occurring after the entry of the decree; (2) not every
       change in circumstances is sufficient; (3) it must appear that
       continued enforcement of the original decree would, as a result of
       the changed conditions, result in positive wrong or injustice; (4) the
       change in circumstances must be permanent or continuous rather
       than temporary; (5) the change in financial conditions must be
       substantial; and (6) the change in circumstances must not have been
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       within the contemplation of the trial court when the original decree
       was entered.

Walters, 575 N.W.2d at 741 (quoting In re Marriage of Vetternack, 334 N.W.2d

761, 762 (Iowa 1983)); accord Michael, 839 N.W.2d at 636. “In determining

whether there is a substantial change in circumstances, the court shall consider,”

among other things, “[c]hanges in the employment, earning capacity, income, or

resources of a party” and “[c]hanges in the physical, mental, or emotional health

of a party.” Iowa Code § 598.21C(1)(a), (e).

       The district court concluded Matthew proved a substantial change of

circumstances and modified the dissolution decree based on Matthew’s disability

income.     See also id. § 598.21C(2)(a) (stating “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”). But voluntariness in diminished earning capacity may be an

impediment to modification. See Walters, 575 N.W.2d at 741 (stating a support

order may not be modified based on a decrease in income that is self-inflicted or

voluntary). “[P]arents who reduce their income through an improper intent to

deprive their children of support or in reckless disregard for their children’s well-

being are not entitled to a commensurate reduction in child support payments.” Id.

(citation omitted).

       At trial, Matthew described his employment situation as “very discouraging”

and testified he is “desperate to go back to work.” Matthew testified he was “willing

to relocate” if necessary to find employment. Similarly, one of Matthew’s outpatient

reports describes him as being “quite eager to return to clinical work as a
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physician.”   Unfortunately, the evaluator further opined Matthew “should not

perform any procedures or take calls.”      Since his termination, Matthew used

retirement funds to supplement his income to meet monthly expenses. Although

Matthew testified the children “are No. 1,” he explained, “Currently, I have to

withdraw from my retirement account to meet those expectations [of $3500 per

month in child support].”

       The district court found Matthew’s termination from his job earning more

than $500,000 per year was not voluntary on his part. As the court stated:

               In dispute in this matter is Matthew’s earning capacity and
       whether his reduction in earnings has been voluntary. Matthew
       contends that he has diligently been attempting to find employment
       since his termination from the Mason City Clinic. He claims that his
       attempts have been thwarted by the reason for his termination and
       the current Iowa Board of Medical Examination actions pending
       against him. In contrast, Brandy claims that Matthew should be able
       to find some type of employment as a physician. She claims that
       Matthew is not working up to his earning capacity and that if he was
       so motivated Matthew could have earnings comparable to the
       earnings he had prior to suffering the cardiac arrest on October 11,
       2015. She contends that there are other employment opportunities
       available for Matthew outside of his medical specialty, such as
       teaching, lecturing, or practicing medicine as a general practitioner
       or internal medicine physician. Despite these contentions, Brandy
       offered no evidence as to Matthew’s prospective earnings as a
       professor, lecturer, or general practitioner or internal medicine
       physician.
               To dispute Brandy’s claims, Matthew offered evidence of his
       job search records and testimony that he has sought out other
       employment opportunities outside of cardiology, and he has been
       unsuccessful at securing employment. There was no evidence
       offered by Brandy to support the proposition that even if Matthew
       were to obtain employment outside of his specialty, or even outside
       the scope of practicing medicine, that such prospective income
       would be greater than the income he receives from his private
       disability insurance. Even if Matthew were to obtain part-time
       employment, similar to his potential receipt of Social Security
       Disability benefits, that part-time employment income would be offset
       against his disability.
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                The court finds Matthew’s explanation for his failure to find
       suitable employment as credible and reasonable. Given the nature
       of his cognitive disability and the pending complaints against him, the
       court believes it would be reasonable for any employer or medical
       facility to be hesitant to retain him. The court, therefore, finds that
       Matthew’s loss of income was not voluntary . . . . Furthermore, the
       court finds that the significant reduction in pay is permanent rather
       than temporary in nature. Matthew’s inability to find employment has
       lasted a year and a half. He undergoes periodic reviews by his
       disability carrier to prove his ongoing inability to work. Given the
       nature of his work and claimed disability, the court believes that his
       employment situation is unlikely to change in the near future.
                The court finds that the child support guidelines control in this
       matter and a determination of Matthew’s earning should be based
       upon his disability income. While there is no doubt that the parties
       and their children have grown accustomed to a certain lifestyle prior
       to Matthews change of employment, the change of employment
       experienced by both [Matthew] and [Brandy] were unforeseen and
       outside their control.
                As with any family who suffers catastrophic medical issues,
       the impact on both parents and children can be dramatic. While
       unfortunate, the law requires the court to apply the applicable child
       support guidelines in this situation. Furthermore, the court finds that
       no substantial injustice would result from the application of the child
       support guidelines based upon the parties’ current incomes.

       We agree with the district court’s conclusion that Matthew’s change in

income was not voluntary or self-inflicted. We observe the court found Matthew’s

“explanation for his failure to find suitable employment” to be “credible and

reasonable,” and we give deference to this finding. See McKenzie, 709 N.W.2d at

531 (giving weight to the trial court’s fact-findings, especially those concerning

witness credibility).

       We conclude Matthew has shown a substantial change in circumstances

that warrants modification of his child-support obligation. Accordingly, we affirm.

IV.    Appellate Attorney Fees

       Matthew seeks an award of appellate attorney fees. An award of attorney

fees is not a matter of right and rests within our discretion. In re Marriage of
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Okland, 699 N.W.2d 260, 270 (Iowa 2005). We determine whether an award is

appropriate considering the needs of the party seeking the award, the other party’s

ability to pay, and whether the appeal required a party to defend the district court’s

decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In

light of these factors, we decline Matthew’s request for appellate attorney fees.

Costs on appeal are assessed equally between the parties.

       AFFIRMED.
