IN THE COURT OF APPEALS OF IOWA

No. 20-1011

Filed April 14, 2021

AMBER FELDMAN,

Plaintiff-Appellee,

vs.

CURTIS MITWEDE,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi 

Wittig, Judge.

Curtis Mitwede appeals the order modifying his child support obligation. 

AFFIRMED AS MODIFIED.

Jeremy N. Gallagher of Kintzinger, Harmon, Konrardy, P.L.C., Dubuque, for 

appellant.

Myia E. Steines of Clemens, Walters, Conlon Runde & Hiatt, L.L.P., 

Dubuque, for appellee.

Thomas J. Miller, Attorney General, and Erin Cullen, Assistant Attorney 

General, for appellee State CSRU.

Considered by Bower, C.J., and Doyle and Mullins, JJ.
2

DOYLE, Judge.

Curtis Mitwede appeals the order modifying the amount of child support he 

provides for the two children he shares with Amber Feldman. The district court 

entered a decree addressing child support in 2017, incorporating the provisions of 

an agreement signed by Curtis and Amber. That agreement states that Curtis and 

Amber would share equally in the children’s expenses, that “application of the Iowa 

Supreme Court Child Support Guidelines would be unjust or inappropriate,” and 

that “no child support should be ordered.” 

When the court entered the original decree, Curtis was earning a salary of 

$42,062.00 at Big River Sign Company. But in October 2018, Curtis started a 

business doing similar work. His company’s federal 2019 S corporation tax return 

shows he paid himself compensation of $10,385, and ordinary business income of 

$12,300. By February 2020, Curtis paid himself a bimonthly salary of $1153.85. 

In September 2019, Amber contacted the Iowa Child Support Recovery Unit 

(CSRU) to request modification of Curtis’s child support obligation. The CSRU 

served Curtis with a notice of its intent to modify his child support obligation. Based 

on a financial statement and pay stubs Curtis provided, the CSRU calculated the 

amount of support under the child support guidelines to be $269.00 per month for 

both children with a step-down to $212.00 per month for one child. Believing that 

Curtis “[wa]sn’t being fully honest with his income,” Amber requested a court 

hearing in regard to his child support obligation. The order setting a hearing 

required Curtis to provide updated financial information, including his 2017, 2018, 

and 2019 tax returns. Based on the updated information, the CSRU recalculated 
3

Curtis’s gross monthly income to be $3334.37.1 The CSRU’s updated child 

support guidelines worksheet shows Curtis should pay $671.00 per month of 

support for both children with a step-down to $492.00 per month for one child. 

After the hearing, the district court entered an order modifying child support. 

The court found that Curtis “has been slightly dilatory in his contribution” to the 

children’s expenses and that deviation from the child support guidelines is no 

longer appropriate. In determining Curtis’s gross monthly income, the court noted 

it was only able to see the final tax return Curtis filed and commented that Curtis, 

as sole business owner, “has the ability to manipulate his deductions to maximize 

his expenses and minimize his tax obligation.” The court went on, “If full 

deductions for the building depreciation, rents, and miscellaneous deductions are 

not permitted, he would earn approximately $7100.00 per month which would 

require a much higher support obligation.” After eliminating business deductions 

for rents, interest, depreciation, and “other” deductions, the court determined that 

Curtis earned $7017.75 per month.2 On this basis, the court calculated the amount 

of child support Curtis is obligated to pay under the child support guidelines and 

ordered Curtis to pay $1097.00 per month for two children and $702.96 per month 

for one child. 

 

1 The CSRU arrived at this figure by adding Curtis’s 2020 salary 

($1153.85 × 2 = $2307.70) to the ordinary business income shown on the federal 

2019 S Corporation tax return ($12,300.00 ÷ 12 = $1026.67). $2307.70 + 

$1026.67 = $3334.37/month.

2 From federal 2019 S Corporation tax return: $165,025 less cost of goods sold = 

$104,664. Subtracting salaries of $4713, Advertising of $5948 and taxes of $9790 

the total business income is $104,664 - $20,451 = $84,213. $84,213 ÷ 12 = 

$7017.75/month.
4

We review orders modifying dissolution decrees de novo. See In re 

Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). In doing so, we give 

weight to the 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.’” See id. (quoting In re Marriage of Walters, 575 N.W.2d 739, 

741 (Iowa 1998)). We afford the district court “considerable latitude” in its 

determination “and will disturb the ruling only when there has been a failure to do 

equity.” In re Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005).

Curtis challenges the court’s finding regarding his earnings. We determine 

income “from the most reliable evidence presented.” In re Marriage of 

Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999). With regard to business income, 

we allow deductions for expenses reasonably necessary to maintaining the 

business. See Iowa R. Ct. 9.5(1)(c) (“Gross income from self-employment is selfemployment gross income less reasonable business expenses.”); In re Marriage 

of Gaer, 476 N.W.2d 324, 329 (Iowa 1991) (“[S]ome consideration must be given 

to business expenses reasonably necessary to maintain the business or 

occupation.”) (Emphasis in original). The question is whether the deductions at 

issue here are for expenses reasonably necessary to maintain Curtis’s business.3

 

3 Curtis also claims that the court improperly based his income on a single year of 

earnings. Because he raises this issue for the first time on appeal, error is not 

preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 

2002).
5

The only evidence in the record regarding Curtis’s earnings consists of 

Curtis’s tax returns for the years 2017 through 2019 and his three paystubs from 

early 2020. Curtis’s most recent tax return shows his business had gross sales 

totaling $165,025.00. Gross profit was $104,664.00 after subtracting cost of goods 

sold. Curtis then deducted compensation of officers ($10,385), salaries and wages

($4713), rents ($12,000), taxes ($9790), interest ($1163), depreciation ($33,120), 

advertising ($5948), and other deductions ($15,225). So ordinary business income 

shows as $12,320. The district court’s calculation of Curtis’s earnings excluded

the deductions for rents, interest, depreciation, and other deductions. It appears 

that the court disallowed the deduction for rents based on an erroneous belief that 

the business owns the building in which it is located,4 but no evidence supports 

such a finding. And despite the court’s assertion that Curtis has the ability to 

manipulate his deductions, there is no evidence showing he did so. We note that 

a professional prepared the return, and no party presented expert testimony or 

other evidence to show the deductions were unreasonably excessive. Without any 

evidence to support a finding that Curtis manipulated his tax returns to reduce his 

income for purposes of calculating his child support, we conclude the deductions 

were reasonably necessary to maintain the business. See In re Marriage of 

Hansen, 886 N.W.2d 868, 876-77 (Iowa Ct. App. 2016). Because the reliable 

evidence supports the CSRU’s calculation of Curtis’s income in the amount of

 

4 The court found the building in which the business is located “is valued at over 

one-million dollars but depreciated on [Curtis]’s tax returns.” But the corporate tax 

return shows Curtis depreciated only a Roland Printer that cost $19,000 and a 

2011 Honda that cost $18,000. 
6

$3334.37 per month, we modify the order to require Curtis to pay child support of 

$671.00 per month for both children and $492.00 per month for one child.5

Curtis next challenges the portion of the order requiring the parties to share 

expenses for show choir. The purpose of the child support guidelines is to “balance 

the needs of the children against the legitimate needs and expenses of the payor 

parent.” In re Marriage of Gordon, 540 N.W.2d 289, 292 (Iowa 1995). Therefore, 

there is a presumption that the amount of support ordered under the guidelines is 

correct. See id. Because the guidelines include expenses for clothes, school 

supplies and recreation activities, the court cannot order additional support to 

cover any such expense unless it finds the amount of support provided under the 

guidelines would be unjust or inappropriate. See id. Although the court found 

show choir to be “an expense that is not normally incurred by other children of the 

same as the parties’ daughter,” the record is devoid of any evidence regarding this 

expense. Because there is no basis for overcoming the presumption in favor of 

the guidelines, we modify the order to remove the requirement that the parties’ 

share equally in this expense.

 

5 Although no party has addressed how any resulting overage in child support 

payments should be dealt with, our supreme court believes it is “within the power 

of an appellate court in such situations to provide for a reduction in the amount of 

future payments over a period of time required to exhaust any overplus resulting 

from the decision on appeal.” Thomas v. Minner, 340 N.W.2d 285, 287 (Iowa 

1983) (addressing the overpayment of spousal support after the obligation is 

reduced on appeal). In State ex rel. Department of Human Services v. Cottrell, 

513 N.W.2d 765, 768-69 (Iowa 1994), our supreme court held in an analogous 

situation that “[a]ny overpayment made . . . in light of our modification of [the] 

monthly support obligation shall be applied to reduce the reimbursement amount.” 

To avoid the costs of further district court litigation and another appeal, we 

encourage the parties to reach an agreement for a method allowing Curtis to 

recoup any overpayment of child support.
7

Curtis also challenges the court’s refusal to modify the provisions of the 

decree ordering Amber to provide the children’s health coverage. The legislature 

has established an order of priority when the CSRU enters or seeks an order for 

medical support. See Iowa Code § 252E.1B(2). The first priority is given to a 

custodial parent who is currently providing coverage under a health benefit plan 

other than public coverage if the plan is accessible and the cost is reasonable. 

See id. § 252E.1B(2)(a). Because Amber provides coverage as set forth in section 

232E.1B(2)(a), we affirm this provision.

Finally, both parties request an award of appellate attorney fees. This 

action was brought under Iowa Code chapter 252H, which does not authorize an 

award of attorney fees. See Iowa Code § 252H.5. Without statutory authority to 

award attorney fees, we deny any such award. See Rea v. Iowa Dist. Ct. for Lee 

Cty., 877 N.W.2d 869, 871-72 (Iowa 2016) (noting the district court is without 

authority to award attorney fees in action arising under chapter 252H); Van Sloun 

v. Agans Bros., 778 N.W.2d 174, 182 (Iowa 2010) (stating that attorney fees are 

not allowed “in the absence of a statute or agreement expressly authorizing it” 

(citation omitted)).

AFFIRMED AS MODIFIED.