Amber Kaczinski v. Adam Welch

IN THE COURT OF APPEALS OF IOWA

No. 16-1522
Filed March 22, 2017

AMBER KACZINSKI,
Petitioner-Appellee,

vs.

ADAM WELCH,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Stuart P. Werling,

Judge.

Appeal from an order establishing physical care and support. AFFIRMED

IN PART AND REMANDED.

Judd J. Parker of Parker Law Office, Clinton, for appellant.

Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellee.

Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

Amber Kaczinski and Adam Welch are the parents of P.K. (born 2007).

The parties never married but maintained an on-again-off-again relationship after

the child’s birth. They separated for good when the child was approximately two-

and-one-half years old. At the time of the parties’ separation, paternity and

support had been legally established but custody and visitation had not. The

parties informally agreed Amber would serve as the child’s primary caregiver with

Adam having visitation every other weekend. This arrangement worked fairly

well until December 2015. Adam refused to return P.K. to Amber’s care for one

week following a Christmas visitation. Adam contends the parties agreed to one-

week visitation. Amber contends the parties agreed only to Christmas day.

Regardelss, immediately after this incident, Amber initiated this proceeding to

establish custody, visitation, and support. The district court granted the parties

joint legal custody of the child, Amber physical care of the child, and Adam

reasonable visitation. The district court ordered Adam to pay $658.93/month as

child support. Adam appeals, requesting shared care of the child and a reduction

in child support.

I.

Our review of cases in equity is de novo. See Iowa R. App. P. 6.907. We

review the entire record and decide anew the factual and legal issues presented.

See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Prior

cases have little precedential value; the court must make its determination based

on the unique facts and circumstances of each case. See In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re Marriage of Snowden, No. 14-
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1920, 2015 WL 4233449, at *1 (Iowa Ct. App. July 9, 2015) (“All happy families

are alike; each unhappy family is unhappy in its own way.” (quoting Leo Tolstoy,

Anna Karenina 1 (1873))). Although our review is de novo, we exercise our

review with deference to the district court. See In re P.C., No. 16-0893, 2016 WL

4379580, at *2 (Iowa Ct. App. Aug. 17, 2016).

II.

Adam requests joint physical care of the child. Physical care is defined as

“the right and responsibility to maintain a home for the minor child and provide for

the routine care of the child.” Iowa Code § 598.1(7) (2015). In making the

physical care determination, we look to the factors set forth in Iowa Code section

598.41(3) and our case law. See Iowa Code § 598.41(3); Iowa Code § 600B.40

(“In determining the visitation or custody arrangements of a child born out of

wedlock, if a judgment of paternity is entered and the mother of the child has not

been awarded sole custody, section 598.41 shall apply to the determination, as

applicable, and the court shall consider the factors specified in section 598.41,

subsection 3, including but not limited to the factor related to a parent’s history of

domestic abuse.”); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974). In determining whether joint physical care is appropriate, we consider the

following factors: (1) the “stability and continuity of caregiving”; (2) “the ability of

spouses to communicate and show mutual respect”; (3) “the degree of conflict

between parents”; and (4) “the degree to which the parents are in general

agreement about their approach to daily matters.” In re Marriage of Hansen, 733

N.W.2d 683, 696–99 (Iowa 2007). “Each factor, however, does not necessarily

impact the decision with equal force.” In re Marriage of Daniels, 568 N.W.2d 51,
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54 (Iowa Ct. App. 1997). In considering the factors, our ultimate objective “is to

place the child in the environment most likely to bring him to healthy mental,

physical, and social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct.

App. 2010). The controlling consideration is the children’s best interests. See In

re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996).

Amber lives with her fiancé, Cody, in DeWitt. Amber and Cody have two

children together, and Cody has physical care of another child from a previous

relationship. Cody is employed as a builder. Amber was a stay-at-home mother

except for a brief period of time in 2016 when she obtained full time employment

but discovered the cost of child care for the children offset her earnings. At the

time of trial, she had quit her job to provide in-home daycare services. She

testified she expected to make $200 per week, increasing “ideally” to $400 per

week. Several years prior to trial in this case, there was an incident of domestic

violence in the home resulting in Cody’s arrest and conviction. Amber testified

this was a one-time occurrence. She and Cody have worked on their relationship

and had no further incidents. Adam testified he has continuing concerns about

Cody’s behavior and the stability of Cody and Amber’s relationship.

Adam lives with his girlfriend, Ashley, in Wheatland, approximately fifteen

to twenty minutes from DeWitt. Their home is a mixed household: the two have a

biological child, and Ashley has physical care of a child from a previous

relationship. Ashley is studying nursing in online courses and providing care for

the children. Adam works as a shift supervisor at a plastics manufacturer. He

had worked second shift but learned the day before trial he would be moved to

third shift, which would allow him more time home with his children and which
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would enable him to provide school transportation in the mornings. Adam

testified he typically worked forty hours per week at $19.15 per hour and often

worked twenty overtime hours per week at between $28-29 per hour. He

testified he would reduce his overtime hours if awarded shared care.

The most relevant consideration in this case is the history of caregiving.

“In considering whether to award joint physical care where there are two suitable

parents, stability and continuity of caregiving have traditionally been primary

factors.” Hansen, 733 N.W.2d at 696. “Stability and continuity concepts have

been . . . expressed in terms of an approximation rule, namely, that the

caregiving of parents in the post-[separation] world should be in rough proportion

to that which predated the [separation].” Id. at 697. Amber has served as the

child’s primary caretaker for nine years. Amber and Adam had an agreed-upon

arrangement in which Amber had physical care of the child and Adam had

visitation every other weekend. Amber was responsible for making the routine

decisions regarding care of the child, including decisions regarding medical care,

education, and extracurricular activities. Adam has been largely uninvolved in

these decisions or activities. For example, Adam has not attended any school

conferences. The child now has established patterns in her social, familial, and

educational life. It is in the best interests of the child to maintain stability in the

present caretaking arrangement. We decline to change the physical care

arrangement.

III.

We next address child support. Both parties submitted child support

guideline worksheets in support of their respective cases. Amber’s worksheet
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set forth her income as $18,700 per year. She testified this was a fair estimate of

income from her child-care business. However, the district court calculated child

support using imputed income of $15,080 annually, which was based on the

minimum wage. The district court found Adam’s income to be $55,500 per year.

The district court calculated Adam’s child support obligation to be $658.93 per

month. Adam argues the child support award is too high and the district court

“should have imputed more than minimum wage [to] Amber, as she was gainfully

employed and working overtime absent her voluntary decision to quit [her

previous job].”

We disagree with Adam that the district court should have calculated

Amber’s income based on her prior employment. She terminated her

employment because her income was offset by her daycare expenses for four

children. In other words, she did not terminate her employment to manipulate the

award of child support. However, we agree the district court should not have

imputed minimum wage income to Amber. A court may consider earning

capacity of the parents rather than their actual earnings. See, e.g., In re

Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa 2006); In re Marriage of

Bonnette, 492 N.W.2d 717, 722 (Iowa 1992). However, before doing so the court

must “make a finding that, if actual earnings were used, substantial injustice

would result or that adjustments would be necessary to provide for the needs of

the child and to do justice.” In re Marriage of Flattery, 537 N.W.2d 801, 803

(Iowa Ct. App. 1995). The court here did not make any explicit finding that

substantial injustice would result from using Amber’s actual or projected earnings

from her business. Amber reported her income as $18,700 on her child support
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guidelines worksheet. She testified this was a fair estimate of her income. There

is nothing in the record to the contrary. We find this amount is Amber’s income

for the purposes of calculating child support.

IV.

We affirm the district court’s award of physical care to Amber. We remand

for recalculation of the child support award based on Amber’s income of $18,700

per year and Adam’s income of $55,500 per year.

AFFIRMED IN PART AND REMANDED.