IN THE COURT OF APPEALS OF IOWA
No. 20-1115
Filed May 12, 2021
BRIAN McKNIGHT,
Plaintiff-Appellee,
vs.
KAYLA ANDERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary,
Judge.
Kayla Anderson appeals the custody and child support provisions of a
modification decree. AFFIRMED.
Kelsey Bauerly Langel of Bauerly & Langel, P.L.C., Le Mars, for appellant.
Sharese Whitesell of Crary, Huff, Ringgenberg, Hartnett & Storm, P.C.,
Dakota Dunes, South Dakota, for appellee.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
Kayla Anderson appeals the custody and child support provisions of a
modification decree. Brian McKnight contends the district court modification was
correct.
I. Background Facts and Proceedings
Kayla and Brian engaged in a relationship that resulted in the birth of one
child in 2016. The parties have never been married. In 2016, the parties were
involved in proceedings to establish paternity, custody, visitation, and child
support. The court entered an order approving the parties’ stipulation providing for
joint legal custody, shared physical care, a parenting schedule, and child support,
but the parties often deviated from the parenting time provision and schedule.
Over the years, the parties disagreed about schedule changes but were generally
successful in maintaining a relationship directed at the best interests of the child.
The parties returned to court in 2019 as the child neared school age.
At the time of the 2016 stipulation, Brian lived in Sioux City and Kayla in
Onawa. At the time of the modification, Kayla lived in Le Mars.1 Kayla was
engaged to a man who owned a business and lived with him, their two children,
and children of both Kayla and her fiancé from prior relationships.2 Kayla sought
to enroll the child in a preschool in Le Mars, and indicated she would transport the
child when required to maintain the parenting time schedule. Brian resisted
enrollment because his parenting time would be diminished. He asked that the
1 Kayla relocated multiple times between 2016 and 2019. All of those were related
to her choice to live with her fiancé.
2 The modification decree states that Kayla and her fiancé intended to marry in
August 2020. We are not aware whether that occurred.
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child be enrolled in preschool in Sioux City. The dispute led Kayla to file for
modification of custody and child support in 2019. Brian raised counterclaims to
both issues.
Trial was held in July 2020. The district court heard testimony from both
parents and received affidavits from certain family and community members.
Kayla was a stay-at-home parent but had previously worked as a CNA and
teacher’s aide. Brian had been employed by the same company for more than
seven years. His work schedule required him to arrive as early as 4:30 a.m. and
work until 3:00 p.m. Brian maintained consistent childcare and also had the help
of his mother and brother, who also live in Sioux City.
Kayla’s relationship with her fiancé has a history of “difficulty.” The child
witnessed the fiancé engage in physical violence toward Kayla, resulting in her
seeking a domestic abuse protection order. Kayla and her fiancé have engaged
in counseling and they “appear to have resolved their issues or learned new coping
skills with the issues that contributed to the past physical abuse.” The fiancé has
a history of becoming frustrated when Brian attends the child’s medical
appointments with Kayla. The court stated the following regarding the unrest in
Kayla’s relationship: “the presence of these issues causes the Court some pause
when considering the issue of custody. The concerns the Court has with Kayla do
not exist with Brian.”
The court made the following finding related to the distance between the
parties’ residences:
The Court notes that their joint physical care parenting schedule and
arrangement appears to have been going well and could have
continued had it not been for the distance between them created by
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Kayla’s move to Le Mars. Presently they live in two school districts
and live about 26 miles apart. This distance makes joint physical
care impractical, if not unworkable.
The court found the following, specifically related to the schooling issue:
Brian cannot get [the child] to Le Mars before work and it does not
appear that Kayla could get [the child] to Brian for school in Sioux
City. This situation causes the prospect of joint physical care
continuing to be a nonstarter. Joint physical care can no longer work.
Ultimately, the court found a substantial change of circumstances had occurred to
warrant modification of the 2016 decree. A balance of the above considerations
resulted in the court awarding physical care of the child to Brian.
Following the physical care modification, the district court also considered
child support. The district court imputed income to Kayla because she was
“capable of working and earning a wage if it were not for the cost of child care she
would incur should she return to work.” The court noted that employment as a
CNA would require Kayla to re-certify, but stated that would not be difficult, and
imputed an income at the rate “equa[l] to part-time work as a CNA or as a daycare
worker.” The court utilized the child support guidelines and ordered Kayla to pay
$83.00 per month to Brian in child support. Kayla appeals the physical-care and
child-support determinations.
II. Standard of Review
We review applications for modification of child custody and support de
novo. In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). “We give
weight to the findings of the district court, particularly concerning the credibility of
witnesses; however, those findings are not binding upon us.” Id. (quoting In re
Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013)).
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III. Analysis
A. Custody
Kayla raises two arguments related to custody of the child. She argues that
the district court erred in finding Brian proved an ability to more effectively minister
to the child’s well-being and in finding that modification was in the best interests of
the child. Custody issues arising after a paternity determination are examined by
application of the statutory factors listed in Chapter 598, even though paternity
determinations are made pursuant to Chapter 600B. Iowa Code § 600B.40(2)
(2019). “To change a custodial provision of a dissolution decree, the applying party
must establish by a preponderance of the evidence that conditions since the
decree was entered have so materially and substantially changed that the
children’s best interests make it expedient to make the requested change.” In re
Marriage of Frederici, 338 N.W.2d 156,158 (Iowa 1983). By their pleadings, the
parties agreed the prior decree should be modified because of substantial changes
in circumstances, but Kayla appeals the district court’s decree that awarded Brian
physical custody of the child, “which is the right and responsibility to maintain the
principal home and to provide routine care for the child[ ].” Id.
Our primary consideration in custody issues is the best interests of the child.
In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). “The best-interests
standard ‘provides the flexibility necessary to consider unique custody issues on a
case-by-case basis.’” Id. (quoting In re Marriage of Hansen, 733 N.W.2d 683, 696
(Iowa 2007)). When courts examine a custodian’s relocation with a child, courts
“must consider all of the surrounding circumstances. They include the reason for
removal, location, distance, comparative advantages and disadvantages of the
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new environment, impact on the children, and impact on the joint custodial and
access rights of the other parent.” Frederici, 338 N.W.2d at 160. In this case, the
child’s relocation with Kayla is not the precise question. However, the factors listed
will help us determine whether the change in physical care was in the best interest
of the child.
Kayla argues the district court erred in finding Brian proved his “ability to
minister more effectively to the child[ ]’s well being.” See id.at 158. Courts
consider the factors presented in Iowa Code section 598.41(3) (2019). Iowa Code
§ 600B.40; In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).
In addition to the statutory factors, courts also consider the factors presented 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 court’s “objective is to place the child
in an environment most likely to bring the child to healthy physical, mental, and
social maturity.” Courtade, 560 N.W.2d 38.
We agree with the district court that both parties love the child. Some of the
factors we consider are a wash, because both parents have a history of providing
suitable care for the child in the past and are dedicated to meeting the child’s
needs. Accordingly, we will discuss only the factors that tip the scale.
The history of unrest in Kayla’s home, including multiple relocations based
on the status of Kayla’s relationship and the history of domestic violence, is
problematic. See Iowa Code § 598.41(3)(j); Winter, 223 N.W.2d at 166. Kayla
relocated multiple times to maintain her relationship. Our review of the record does
not reveal any motive to prevent contact between the child and Brian. Kayla’s
desire to maintain a consolidated household with her fiancé and relieve financial
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constraints of maintaining two households may be appropriate. See Hoffman, 867
N.W.2d at 33. Although it appears that the violence between Kayla and her fiancé
has been alleviated, the record shows that the exposure to violence disrupted the
child’s progress with potty training and sleeping through the night. The child
sought comfort from Brian and his family during that time, and Brian’s family
provided the child with coping skills to ease his fear.
Kayla has an extensive history of resisting Brian’s ability to parent the child.
Also, Kayla’s fiancé is easily frustrated when Brian exercises his parental right to
be involved in things like the child’s medical care, creating unrest between the
parents and straining communication. See Iowa Code § 598.41(3)(c), (e). No
matter which party maintains the child’s primary home, the other party’s parenting
schedule will change. The parties have exhibited the ability to accommodate each
other’s holiday schedules in the past. However, Kayla has restricted Brian’s
parenting time based on frustrations related to custody negotiations, while Brian
has been more open and accommodating to adjustments so the child may have
meaningful time with both parents. See id.; Winter, 223 N.W.2d at 166. The child
would have more contact with siblings in Kayla’s home, but would have more
consistency and stability in Brian’s home. Kayla is a stay-at-home parent and
would provide the child’s care full-time in her home. But, Brian has maintained a
consistent routine with a babysitter and has access to familial care providers for
additional help.
It is clear on our review of the record that both parents want to provide a
home and care for the child. But, because the child will attend school and the
parents reside in two separate districts, along with the transportation issues, it
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would be helpful for the child to reside primarily in one home to effectively facilitate
school attendance. Brian has maintained a consistent home environment,
employment, and child-care routine. Brian has attempted to facilitate contact
between the child and Kayla’s other children during his parenting time and desires
to foster those relationships. On our de novo review of the record, we agree with
the district court that Brian proved by preponderance of the evidence that he has
a greater ability to minister to the child’s well-being.
B. Child Support
Kayla argues that the district court erred in imputing income to her in
recalculating the child support award. She specifically targets the district court’s
alleged failure to consider (1) that she provided health insurance for the child,
(2) child-care costs would result if she worked twenty hours per week, and (3) that
the parties stipulated that neither party would pay child support.
Child support orders made pursuant to section 600B.25(1) are made in
consideration of the child support guidelines presented in section 598.21B. Iowa
Code § 600B.25(1). The district “court has continuing jurisdiction over proceedings
brought to compel support and to increase or decrease the amount thereof. . . .”
Id. § 600B.31. A petitioner who desires to change a child support award must
prove “by a preponderance of the evidence that subsequent conditions have so
changed that the welfare of the children requires, or at least makes expedient,
such modification.” In re Marriage of Robbins, 510 N.W.2d 844, 845 (Iowa 1994).
Courts consider the following:
(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
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continued enforcement of the original decree would, as a result of
the changed conditions, result in a 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
within the contemplation of the trial court when the original decree
was entered.
Id. (quoting In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983)). We
examine “each parent’s earning capacity, economic circumstances, and cost of
living.” Id. Statutory provisions also apply. See Iowa Code §§ 600B.25, 598.21C.
The Iowa Code lists a number of factors courts consider to determine whether
there has been a substantial change in circumstances and indicates that it does
exist “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
established pursuant to section 598.21B.” Id. § 598.21C(1), (2).
In this case, the physical care of the child changed from a joint plan to
physical care with Brian. Brian will now bear a larger financial burden for the day-
to-day costs of the child including food, clothing, and child care, among other
things. We agree with the district court that there has been a substantial change
in circumstances to warrant modification of the child support award. The record
does not support Kayla’s argument the district court failed to consider that she has
historically provided the child’s medical insurance. The district court discussed
that history and specifically ordered that Brian “explore Hawk-I and other
alternatives for [medical] coverage and pay the cost of the coverage.”
A “child support award may be based upon [a] party’s earning capacity, as
opposed to his or her actual earnings.” In re Marriage of Roberts, 545 N.W.2d
340, 343 (Iowa Ct. App. 1996).
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When a parent voluntarily reduces his or her income or decides not
to work, it may be appropriate for the court to consider earning
capacity rather than actual earnings when applying the child support
guidelines. Before using earning capacity rather than actual
earnings a court must, however, make a determination that, if actual
earnings were used, substantial justice would occur or adjustments
would be necessary to provide for the needs of the children and to
do justice between the parties. We examine the employment history,
present earnings, and reasons for failing to work a regular work week
when assessing whether to use the earning capacity of a parent.
In re Marriage of Malloy, 687 N.W.2d 10, 115 (Iowa Ct. App. 2004) (citations
omitted); see Iowa Ct. R. 9.11.
The court imputed income to Kayla “to do justice between the parties and
be equitable.” See Iowa Ct. R. 9.11. The court engaged in a discussion of Kayla’s
work history and income from child support for another child. The district court
noted that Kayla’s CNA certification has lapsed, but that it would not be difficult to
recertify. It also discussed the fact that Kayla stays home to avoid child-care costs,
and specifically found “that it is reasonable for Kayla to remain at home and not
work until the time her children are in school.” The child-support guidelines
worksheet reveals that the district court did not list child care expenses Kayla
would incur for the three other children. The worksheet specifically states that the
childcare costs listed apply to the present action only. Thus, because Kayla is not
the custodial parent of this child, the costs she would incur for the three other
children, who are not Brian’s children, are inapplicable.
Finally, Kayla argues the court should have enforced the 2016 stipulation in
that the parties agreed neither would pay child support. When the parties
stipulated that neither would pay child support they also stipulated to shared
physical care. But as a result of the modification of custody, they no longer share
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care. There is “a rebuttable presumption that the amount of child support which
would result from the application of the guidelines prescribed by the supreme court
is the correct amount of child support to be awarded.” Iowa Code § 598.21B(c);
Iowa Ct. R. 9.4; see also Iowa Code § 600B.25(1) (directing support
determinations for unmarried parents to section 598.21B). We agree with the
district court that the amount of support determined by the guidelines is required
to provide reasonable support to the child. See Iowa Ct. R. 9.3(1).
IV. Conclusion
Because Brian met his burden to prove that modification was in the child’s
best interests and that he was best suited to care for the child’s well-being, we
affirm the district court’s modification of physical care. Kayla’s child support
arguments are not supported by the record.
AFFIRMED.