In re the Marriage of Christensen

IN THE COURT OF APPEALS OF IOWA

No. 19-1707
Filed January 21, 2021

IN RE THE MARRIAGE OF JAMIE L. CHRISTENSEN AND MICHAEL D.
CHRISTENSEN

Upon the Petition of
JAMIE L. CHRISTENSEN,
Petitioner-Appellee/Cross-Appellant

And Concerning
MICHAEL D. CHRISTENSEN,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Audubon County, Michael D.

Hooper, Judge.

A father and mother both appeal the district court order modifying the

decree dissolving their marriage. AFFIRMED ON BOTH APPEALS.

Theodore R. Wonio of Rasmussen, Nelson & Wonio, P.L.C., Atlantic, for

appellant.

David L. Jungmann of David L. Jungmann, P.C., Greenfield, for appellee.

Considered by Doyle, P.J., Ahlers, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2021).
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AHLERS, Judge.

Both parties appeal the district court’s order ruling on the requested

modification of the parties’ dissolution of marriage decree. The father argues the

district court erred by refusing to modify physical care of the couple’s second oldest

child and by granting the mother physical care of their third oldest child. The

mother argues the district court erred by incorrectly calculating the amount of child

support and abused its discretion by failing to require the father to pay her trial

attorney fees. Both parents request appellate attorney fees. We address each of

these issues in turn.

I. Background

The parents divorced in 2010. They had two children together at the time

of their divorce: G.C., their oldest child, and A.C. The dissolution of marriage

decree awarded joint legal custody to both parents and placed physical care of the

children with the mother. The father was granted visitation with the children every

other weekend and for two weeks during the summer. The decree also required

the father to pay child support and provided for division of medical expenses of the

children. In 2011, a consent decree was entered in the dissolution case

establishing the father’s paternity of C.C., the parties’ child born after the original

decree was entered. The consent decree directed the father to pay child support

and provide medical support for all three children.

The father has been employed with the same company for approximately

ten years as a sales representative and consultant. He testified he earned a salary

of $52,000 per year. The mother is a licensed practical nurse and at the time of

trial was employed as a para-instructor earning $11.00 per hour.
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Following the birth of C.C., the mother began a relationship with another

man, eventually moving in with him in 2014 and marrying in 2019. During this time,

the father and the mother had two more children: J.H, born in 2014, and A.H., born

in 2015. The father testified the mother had the father help her conceive because

the mother’s boyfriend (and later husband) could not have children.

The father filed the current modification proceeding requesting physical

care of G.C. and A.C. He also sought a determination regarding legal custody and

physical care of C.C., a modification to his child support obligation, and to be

allowed to claim the child tax credit and earned income tax credit each year for all

three children. The mother filed a separate action seeking determinations of

paternity, child custody, and support for J.H. and A.H. That action was joined to

the proceedings at issue on appeal.

The case went to trial in June 2019. The district court granted the parties

joint legal custody of all five children and granted the mother physical care of A.C.,

C.C., J.H., and A.H.1 As for child support, the court determined the father’s income

was $52,469 per year. The court determined the mother’s income was $20,000

per year. The court calculated the parties’ respective child support obligations

based on the split physical care arrangement, offset the respective obligations, and

directed the father to pay the net difference as child support to the mother. See

Iowa Ct. R. 9.14(4) (requiring offset with split or divided physical care

arrangements). The father moved to reconsider, resulting in the district court

modifying the father’s child support obligation and granting him more visitation

1The parties stipulated to modifying the decree such that the father would have
physical care of G.C.
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time, but not otherwise changing the legal custody and physical care

determinations. The father appealed and the mother cross-appealed.

II. Standards of Review

We review marriage-dissolution proceedings de novo. In re Marriage of

Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “Although we give weight to the factual

findings of the district court, we are not bound by them.” In re Marriage of Mauer,

874 N.W.2d 103, 106 (Iowa 2016). When assessing witness credibility, “[t]here is

good reason for us to pay very close attention to the trial court’s assessment.” In

re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). “We will disturb the

district court ruling ‘when there has been a failure to do equity.’” In re Marriage of

Kimbro, 826 N.W.2d 696, 698 (Iowa 2013) (quoting In re Marriage of Schriner, 695

N.W.2d 493, 496 (Iowa 2005)). And our overriding concern is the child’s best

interest. Iowa R. App. P. 6.904(3)(o).

We review trial court decisions regarding attorney fees for abuse of

discretion. Id.

We reverse the district court’s ruling only when it rests on grounds
that are clearly unreasonable or untenable. A ruling is clearly
unreasonable or untenable when it is “not supported by substantial
evidence or when it is based on an erroneous application of the law.”

Id. at 698–99 (quoting In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa

2012)).

III. Discussion

a. Physical Care of A.C. and C.C.

The father first argues physical care of A.C. and C.C. should be placed with

him instead of the mother. “Physical care issues are not to be resolved based
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upon perceived fairness to the spouses, but primarily upon what is best for the

child.” Thorpe v. Hostetler, 949 N.W.2d 1, 6 (Iowa Ct. App. 2020) (quoting In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007)). “The objective of a

physical care determination is to place the children in the environment most likely

to bring them to health, both physically and mentally, and to social maturity.”

Hansen, 733 N.W.2d at 695. We are guided in this inquiry by the factors listed in

Iowa Code section 598.41(3) (2019) and the non-exclusive factors enumerated in

In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). McKee v. Dicus,

785 N.W.2d 733, 737 (Iowa Ct. App. 2010). The father cites the same arguments

in support of placing physical care of both C.C. and A.C. with him.

We first consider physical care of C.C. There is no prior physical care order

related to C.C. As such, we treat the father’s appeal as to C.C. as an appeal from

an initial custody determination. We will consider “the previous pattern of

caregiving an important factor in an initial custody determination.” McKee, 785

N.W.2d at 737; Hansen, 733 N.W.2d at 696 (“[T]he successful caregiving by one

spouse in the past is a strong predictor that future care of the children will be of the

same quality.”).

On our de novo review, we agree with the district court and conclude placing

physical care of C.C. with the mother is in C.C.’s best interest. All of the children

have mainly resided with the mother throughout their lives, with the father having

regular visitation. By all accounts, C.C. and the other children are healthy,

generally do well in school, are active in sports, and are well-adjusted and friendly

children. Even so, the father maintains that it is in C.C.’s best interest for him to

have physical care. He asserts the mother and her husband’s plans to move to a
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community thirty to forty-five minutes away were intended to “drive a wedge”

between the father and the children.2 He also claims the mother has otherwise

withheld information from him and interfered with his relationship with the children.

We are not convinced the move has imposed a significant impediment to

the father’s access to C.C. and the other children. While the mother admitted that

her motivation for moving was in part to put distance between her and the father,

she also explained that the move would move them closer to her husband’s

employer, give her more opportunities to gain employment and further her

education, and would move the family closer to her and her husband’s families.

The modification as ordered by the district court requires the father and the mother

to transfer the children at a public place about equal distance from both homes.

Under these circumstances, we do not believe the mother’s move warrants placing

physical care of C.C. with the father.

Nor are we persuaded the mother’s actions in hindering the father’s

relationship with C.C. rise to such a level as to warrant placing physical care of

C.C. with the father. It is true that the mother has sometimes acted to harm the

father’s relationship with the children. For example, at one point, the mother

installed “spyware” on the children’s phones to monitor their conversations with the

2 In making this argument, the father’s brief included alleged facts regarding an
additional move by the mother that are not part of the record, as they purportedly
occurred after the record was closed. Of course, since those alleged facts are not
part of the record, the father’s brief does not properly cite to the record in support
of those factual allegations and thus violates Iowa Rules of Appellate Procedure
6.903(2)(f) and 6.904(4). We cannot and do not consider these factual allegations
improperly included in the father’s brief. See In re Marriage of Moffatt, 279 N.W.2d
15, 19 (Iowa 1979) (“[A]s a court of review we must ordinarily limit our consideration
to the record made at trial or in supplementary proceedings upon limited remand.”).
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father. However, the record also reveals that the father is not above attempting to

interfere with the children’s relationship with the mother. The father has used

disparaging terms to refer to the mother. The district court also noted that the

father used a mutual acquaintance of the parties to gather evidence in anticipation

of trial. Testimony also suggested that the father was not supportive of the children

participating in therapy to help the children handle the court proceedings, and he

made excuses for G.C. to get out of attending therapy. All in all, neither parent is

blemish-free in terms of fostering the children’s relationship with the other parent.

Having taken into account the blemishes on both sides, we agree physical care of

C.C. was properly placed with the mother.

We next consider physical care of A.C. Unlike the matter of C.C.’s physical

care, which involved an original physical care determination, physical care of A.C.

had already been placed with the mother via a decree entered prior to the start of

these proceedings. Thus, we treat the issue regarding A.C.’s physical care as an

appeal from a modification decision by the district court. The father therefore bears

the burden to “prove by a preponderance of the evidence a substantial change in

circumstances occurred after the decree was entered.” In re Marriage of Harris,

877 N.W.2d 434, 440 (Iowa 2016). He must further prove that he has “a superior

ability to minister to the needs of the children.” Id. This is a heavy burden, and

custody will “be disturbed only for the most cogent reasons.” Id. (quoting In re

Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).

For the same reasons the evidence did not justify placing physical care of

C.C. with the father as an initial custody determination, the evidence falls short of

establishing cogent reasons sufficient to justify changing A.C.’s current physical
 8

care arrangement from the mother to the father. Even assuming the mother’s

move is a substantial change in circumstances, the father has not introduced

evidence supporting the view that he is the superior parent. A.C. has done well

under the mother’s primary care, which has persisted throughout A.C.’s life.

Without such affirmative proof, the father cannot show he is the better parent. See

In re Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015) (noting that even an

“excellent parent who has demonstrated an admirable record of involvement in the

lives of the children” cannot show that the parent should receive physical care of

a child unless the parent can show the parent’s ability to parent the child is superior

to the other parent).

b. Child Support

On her cross-appeal, the mother argues the district court erred in calculating

the amount of child support the father owes to her by (1) excluding at least $13,550

per year in other income claimed to be earned by the father, and (2) improperly

accounting for the cost of health insurance coverage carried on the children by the

father.

(1) The Father’s Income

The first issue relates to other income the mother argues should have been

included in the father’s income for purposes of calculating child support but was

not. On our review of the record, we agree with the district court and conclude this

other income is largely uncertain or anomalous. We determine a parent’s income

from “the most reliable evidence presented.” In re Marriage of Wade, 780 N.W.2d

563, 566 (Iowa Ct. App. 2010). The father and the mother introduced competing

evidence to show the father’s income. Ultimately, the district court concluded the
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father’s evidence was more complete. The district court determined the only

consistent income the father had was from his regular employment. We agree.

While other documents were submitted showing the father had at various times

earned extra money from side jobs doing snow removal, putting up grain bins for

his brother’s business, doing apartment rehabilitation work, and selling woodwork

that he produced, these sources of income were inconsistent or temporary. Thus,

we conclude the district court correctly determined the father’s reasonably

expected income is what he earns from working his regular employment.

(2) Health Insurance Impact on Child Support

Regarding the second issue, the nature of the mother’s claims are not

entirely clear. As near as we can discern from the briefing, the mother makes two

arguments related to health insurance costs that led to a claimed miscalculation of

the father’s child support obligation.

First, the mother argues the district court erroneously failed to take into

account the fact the father was not taxed on the cost of the health insurance

premiums withheld from his wages. The mother cites no authority in support of

her position, and we find no relevant authority addressing interpretation of the

current child support guidelines on the issue of whether the pre-tax nature of

certain withholdings from income should be taken into account in calculating a

parent’s net monthly income. The guidelines themselves provide little guidance or

clarity. “Gross monthly income” is defined by the guidelines as “reasonably

expected income from all sources,” but that definition says nothing about the

taxable nature of the income. Iowa Ct. R. 9.5(1). “Net monthly income” is defined

by the guidelines as gross monthly income less deductions for various taxes
 10

“calculated pursuant to the guideline method.” Id. 9.5(2)(a)–(b). The “guideline

method” for computing taxes is set forth in rule 9.6. That rule explains what filing

status to use in making tax calculations, that the standard deduction applies, and

how to apply personal exemptions, but it says nothing about how pre-tax

deductions are to be considered in calculating a parent’s taxes. Id. 9.6(1)–(5).

Although the guidelines themselves provide little clarity on the issue, we

keep in mind the purpose of the guidelines is to provide adequate support for the

children from the parents “in proportion to their respective incomes.” Id. 9.3(1).

Accurate calculation of the parents’ respective incomes would include taking into

account the reality of the tax consequences of each parent’s income when certain

portions of the parent’s income are known to be nontaxable. Therefore, we

conclude that, when certain income of a parent is known to be nontaxable, the

nontaxable nature of that portion of the income should be reflected in the

calculation of the parent’s tax liability and resulting net monthly income. In this

case, we know from the father’s paystubs that the health insurance premiums

deducted from his wages are deducted on a pre-tax basis. As a result, the district

court should not have included the cost of health insurance premiums as part of

the father’s taxable income when calculating his net monthly income.3 As a result

of this miscalculation, the father’s net monthly income was slightly overstated.

3 As previously noted, we agree with the district court’s determination that the
father’s income consisted of wages from his regular employment and those wages
total $52,469 per year. It is undisputed the father’s health insurance premium cost
deducted on a pre-tax basis totaled $3332 per year. Therefore, in calculating the
father’s net income, the district court should have calculated taxes on taxable
income of $49,137 ($52,469.00 – $3332) with no taxes on the remaining $3332,
rather than treating all $52,469 as taxable income. This would result in a lower tax
 11

Second, the mother argues the district court erred in making the adjustment

to the parties’ respective child support obligations (i.e., the mother’s child support

obligation for the one child in the father’s care and the father’s child support

obligation for the four children in the mother’s care) for the cost of health insurance,

as required by rule 9.14(5). In particular, the mother asserts the court improperly

overstated the upward adjustment of her child support obligation by factoring in the

portion of the cost of health insurance for four children rather than one, as required

by rule 9.14(5)(b).4 In reviewing the child support worksheets generated by the

district court, it appears that the input error claimed by the mother in fact occurred.

As noted, two mistakes were made in the calculation of child support. The

question then becomes what remedy is appropriate. Frequently, when an error is

made in calculating child support, we remand to the district court for purposes of

recalculating child support after correction of the error. See, e.g., In re Marriage

of Mihm, 842 N.W.2d 378, 386 (Iowa 2014); In re Marriage of Leff, No. 19-0038,

2020 WL 564901, at *6 (Iowa Ct. App. Feb. 5, 2020); Hoyle v. Lemon, No. 08-

1897, 2009 WL 1913696, at *4 (Iowa Ct. App. July 2, 2009). However, we are

liability and a higher net income for the father than the calculation made by the
district court, which treated all $52,469 as taxable income.
4 Rule 9.14(5)(b)(1) states:

The allowable child(ren)’s portion of the health insurance premium
will be calculated as follows:
(1) For a health benefit plan covering multiple individuals,
including the child(ren) in the pending action, the allowable
child(ren)'s portion is the amount of the premium cost for such
coverage to the parent or stepparent that is in excess of the premium
cost for single coverage, divided by the number of individuals
enrolled in the health benefit plan, excluding the person providing the
insurance, and then multiplied by the number of children who are the
subject of the pending action.
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mindful that the calculation of “net monthly income” as defined by the guidelines

“is not an exact science.” In re Marriage of Washburn, No. 16-2188, 2017 WL

4050178 (Iowa Ct. App. Sep. 13, 2017) (quoting In re Marriage of Kupferschmidt,

705 N.W.2d 327, 332 (Iowa Ct. App. 2005)). In this case, remand is not necessary.

After correcting the above-referenced errors, our recalculation of child support

yields figures that are only negligibly different from the child support amounts

ordered by the district court. We will not do the parties the disservice of making

them incur the time and expense associated with a remand that would outweigh

the benefits associated with any potential minor change in the child support figures.

The child support amounts ordered by the district court substantially comply with

the guidelines and adequately meet the purpose of the guidelines to provide for

the children’s best interests by requiring the parents to provide adequate support

for their children in proportion to their respective incomes. See Iowa Ct. Rs. 9.3(1),

9.13 (requiring the court to review stipulations of the parties regarding child support

amounts to ensure “substantial compliance” with the guidelines).

c. Attorney Fees

The mother argues the district court abused its discretion by rejecting her

request for the father to pay her trial attorney fees. “An award of attorney fees

rests in the sound discretion of the trial court and will not be disturbed on appeal

in the absence of an abuse of discretion.” In re Marriage of Romanelli, 570 N.W.2d

761, 765 (Iowa 1997). “The controlling factor in awards of attorney fees is the

ability to pay the fees.” Id. Here, we find the district court did not abuse its

discretion in declining to award the mother trial attorney fees. We affirm on this

issue.
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Finally, the father and the mother request appellate attorney fees. The

mother’s appellate attorney has filed a fee affidavit and the father’s attorney has

not. Appellate attorney fees are not awarded as a matter of right, but we may

award them at our discretion. In re Marriage of Hoffman, 891 N.W.2d 849, 852

(Iowa 2016). “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. (quoting In re Marriage of Kurtt, 561

N.W.2d 385, 389 (Iowa Ct. App. 1997)). Given the mother’s limited income, the

comparatively greater ability of the father to pay, and the mother’s forced obligation

to defend the decision of the district court on appeal, which she did successfully,

we find the father should be required to pay some of the mother’s appellate fees.

However, we are also mindful that the mother was unsuccessful on her cross-

appeal. Id. (declining to award appellate fees to the unsuccessful party). After

balancing the relevant factors, the father shall pay $3000 of the mother’s appellate

attorney fees. Costs on appeal are divided equally between the parties. We reject

the father’s claim for appellate attorney fees.

IV. Conclusion

After our de novo review, we affirm the district court in all respects. We

conclude it is in A.C.’s best interest to remain in the physical care of the mother.

We further conclude it is in C.C.’s best interest for the parties to have joint legal

custody of C.C., with the mother to have physical care. We affirm the child support

obligations imposed by the district court. We also affirm the district court’s decision

not to award trial attorney fees to the mother. We order the father to pay $3000 of
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the mother’s appellate attorney fees and reject the father’s claim for appellate

attorney fees.

AFFIRMED ON BOTH APPEALS.