In Re the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman Upon the Petition of Tracy Lynn Hoffman N/K/A Bain, and Concerning Ernst Franklin Hoffman

IN THE COURT OF APPEALS OF IOWA

No. 16-0045
Filed December 21, 2016

IN RE THE MARRIAGE OF TRACY LYNN HOFFMAN AND ERNST FRANKLIN
HOFFMAN

Upon the Petition of
TRACY LYNN HOFFMAN N/K/A BAIN,
Petitioner-Appellant,

And Concerning
ERNST FRANKLIN HOFFMAN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert B. Hanson,

Judge.

Petitioner appeals child support award in modification decree.

AFFIRMED.

Eric G. Borseth of Borseth Law Office, Altoona, for appellant.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for

appellee.

Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

This appeal arises out of a dissolution-modification proceeding. The

matter comes before the court following remand to determine child support. By

way of background, Tracy Bain f/k/a Hoffman and Ernst (“Ernie”) Hoffman

married in 1996 and divorced in 2006. “Two children were born to the marriage:

M.H. in 1999 and Z.H. in 2002. Pursuant to a stipulation regarding custody and

care, the parties were awarded joint legal custody of the children with primary

care of the children to Tracy.” In re Marriage of Hoffman (Hoffman I), No. 13-

1757, 2014 WL 3511893, at *1 (Iowa Ct. App. July 16, 2014). From the time of

the divorce until 2012, both Tracy and Ernie resided in close proximity to each

other in the Des Moines metropolitan area.

In 2012, Tracy relocated to Albia, approximately seventy miles away. See

id. at *1. Ernie subsequently filed a modification action, seeking physical care of

M.H. and Z.H. See id. at *1. The district court granted Ernie’s petition for

modification. See id. at *2. This court reversed the judgment of the district court

and remanded the matter to determine visitation and child support:

With the reversal of the district court decisions concerning
custody, Tracy asks that we require Ernie to pay child support
consistent with the Child Support Guidelines. See Iowa Code
§ 598.21B. Prior to the modification, Ernie was paying
$2000/month in child support. Tracy argues the guidelines require
Ernie to pay support of $2,988.30/month, a 10% variation
constituting a substantial change of circumstances under Iowa
Code section 598.21C(2)(a) that gives our court the right to modify
child support. We remand to the trial court to determine Ernie’s
child support obligation under the guidelines commencing the date
of the decree from which appeal was taken.
....
For the foregoing reasons, we reverse the judgment of the
district court and remand this matter for further proceedings not
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inconsistent with this opinion. We do not retain jurisdiction over this
matter. Costs on appeal are taxed equally to the parties.

See id. at *8. On further review, the supreme court affirmed this court and

remanded the matter for further proceedings:

Because we conclude Ernie has failed to prove the children's move
to Albia constitutes a substantial change of circumstances or that
his ability to minister to the needs of the children is superior to
Tracy’s, we conclude the district court erred in modifying the
dissolution decree. Accordingly, we affirm the decision of the court
of appeals and reverse the district court’s modification ruling. We
remand to the district court for a determination of an appropriate
visitation schedule and modification of Ernie’s child support
obligation based on the present financial circumstances of the
parties and the child support guidelines.

See In re Marriage of Hoffman (Hoffman II), 867 N.W.2d 26, 37 (Iowa 2015).

On remand, the district court determined Ernie should pay child support in

the amount of $2921.40 per month. The district court concluded “respondent’s

new child support obligation should not be retroactive, there having been no

showing that it would be unfair to petitioner or the children for the new child

support obligation to be prospective only nor any showing that the parties’

children’s financial needs have not always been provided for.” Tracy timely filed

her appeal.

On appeal, Tracy contends the district court erred in failing to make the

child support award retroactive. Specifically, she argues the district court acted

illegally in failing to follow this court’s remand instruction. She also argues,

independent of the first point, it was error to make the child support award

prospective only. Our review is de novo. See id. at 32.

We address the first claim of error. “It is a fundamental rule of law that a

trial court is required to honor and respect the rulings and mandates by appellate
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courts in a case.” City of Okoboji v. Iowa Dist. Ct., 744 N.W.2d 327, 331 (Iowa

2008). There can be only a single mandate with respect to a particular issue.

Thus, when the supreme court takes further review of an opinion of this court, the

judgment and mandate of this court has no force or effect with respect to the

issue or issues addressed by the supreme court. See id. (“On remand, the

jurisdiction of the case is returned to the district court for the purpose of doing the

act authorized or directed by the appellate court in its opinion and nothing else. If

the district court proceeds contrary to the mandate, its decision is viewed as null

and void.” (citation omitted)); Anderson v. State, 692 N.W.2d 360, 363 (Iowa

2005) (“On further review, we can review any or all of the issues raised on appeal

or limit our review to just those issues brought to our attention by the application

for further review.”); see also Duncan v. Michigan, 832 N.W.2d 761, 768 (Mich.

Ct. App. 2013) (“Where a case is taken on appeal to a higher appellate court, the

law of the case announced in the higher appellate court supersedes that set forth

in the intermediate appellate court. However, rulings of the intermediate

appellate court remain the law of the case insofar as they are not affected by the

opinion of the higher court reviewing the lower court's determination.” (internal

marks omitted)); Bramlett v. Phillips, 359 S.W.3d 304, 310–11 (Tex. App. 2012)

(explaining the intermediate appellate court’s opinion and judgment remain in

force and effect on those issues unaddressed by the supreme court).

In this case, both this court and the supreme court addressed child

support. This court determined the child support obligation should commence on

“the date of the decree from which appeal was taken.” Hoffman I, 2014 WL

3511893, at *8. In other words, the child support should be retroactive based on
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the parties’ financial circumstances at the time of trial. The supreme court

directed the support obligation be “based on the present financial circumstances

of the parties and the child support guidelines.” Hoffman II, 867 N.W.2d at 37.

The supreme court’s mandate regarding child support is controlling. The clear

import of the supreme court’s mandate was to determine a new child support

obligation based on the parties’ financial circumstances at the time of the remand

hearing and to commence the new child support obligation at that time. See In re

Marriage of Davis, 608 N.W.2d 766, 769 (Iowa 2000) (“What is contemplated in

the appellate opinion by necessary implication may be considered equivalent to

that clearly and expressly stated in the appellate opinion.”). By making the child

support award prospective only, the district court implemented the “letter and

spirit” of the controlling mandate. City of Okoboji, 744 N.W.2d at 332. This claim

of error fails.

With respect to the second claim of error, Tracy contends the district court

should have nonetheless made the support obligation retroactive on equitable

grounds. We disagree. As noted above, the district court must “proceed ‘in

accordance with the mandate and the law of the case as established on appeal.’”

Id. (citation omitted). The supreme court’s mandate was to have the new child

support obligation operate only prospectively. The district court was thus barred

from making the child support obligation retroactive. Further, making a support

award retroactive is permissible, not mandatory, and the district court has

discretion in determining whether such retroactive application is warranted. See

In re Marriage of Ober, 538 N.W.2d 310, 313 (Iowa Ct. App. 1995). Even if we

were to determine there was not a clear mandate by the supreme court, here, the
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district court independently determined retroactivity was not warranted here.

Tracy has not identified any abuse of discretion, and we find none.

Tracy requests an award of appellate attorney fees. “All appellate fees

and costs shall be taxed to the unsuccessful party, unless otherwise ordered by

the appropriate appellate court.” Iowa R. App. P. 6.1207. Appellate costs do not

include appellate attorney fees. Although appellate attorney fees are not

awarded as a matter of right, we may award such fees as a matter of discretion.

See In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.1997). “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

court on appeal.” Id. Tracy was unsuccessful in her appeal. We decline her fee

request.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.