IN THE COURT OF APPEALS OF IOWA
No. 21-0978
Filed June 15, 2022
IN RE THE MARRIAGE OF COURTNEY LEIGH NIEMAN
AND JAMES MICHAEL NIEMAN
Upon the Petition of
COURTNEY LEIGH NIEMAN,
Petitioner-Appellee/Cross-Appellant,
And Concerning
JAMES MICHAEL NIEMAN,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
James Nieman appeals the child support provisions, and Courtney Niemen
cross-appeals the child support and economic provisions, of the decree dissolving
their marriage. AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART.
Joseph G. Bertogli, Des Moines, for appellant.
Donna R. Miller of Miller, Zimmerman & Evans, PLC, Des Moines, for
appellee.
Heard by Bower, C.J., and Schumacher and Ahlers, JJ.
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BOWER, Chief Judge.
James Nieman appeals the child support provisions, and Courtney Niemen
cross-appeals the child support and economic provisions, of the decree dissolving
their marriage. We affirm the dissolution of the marriage and the distribution of
marital property. However, the district court’s findings concerning James’s income
are not supported in this record. Therefore, we reverse and remand for further
findings and recalculation of James’s child support obligation.
I. Background Facts.
Courtney and James married in October 2013 and are the parents of M.N.,
born in 2014, and R.N., 2018. James also has shared care of his child from a prior
relationship.
Courtney and the children left the family home in April 2019 after an incident
where Courtney responded to screams of help from James’s father. James was
intoxicated and had his father on the floor and was “strangling him.” When
Courtney intervened, James came after her and threatened to kill her. Courtney
summoned law enforcement, and James was arrested and jailed. When Courtney
was notified James was going to be released from jail, she and the children
hurriedly packed and traveled to Courtney’s mother’s home in Kansas. Courtney
sought and was granted a domestic-abuse protective order. A criminal no-contact
order was entered after James pleaded guilty to a charge arising from the incident.
Courtney and the children continued to reside with Courtney’s mother.
Courtney is a nurse and obtained full-time employment that allowed her to work
from home. In November 2020, when M.N. was in kindergarten and R.N. was
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enrolled in daycare, Courtney was able to accept a new position with an increase
in annual salary from about $45,000 to $64,105.
James works as a construction supervisor. In late 2018, James travelled to
Florida for a job that did not pan out. He returned to Iowa, did some contract work
with a friend, and eventually started working for a construction firm. James entered
an inpatient substance-abuse treatment program on December 21, 2019. His
gross earnings for 2019 were $35,455. James discharged from inpatient treatment
on January 22, 2020. He returned to work with his former employer, where he
makes thirty dollars per hour. As of December 14, 2020, James’s gross income
for 2020 was $51,712. In January, he received a check for December 15 through
24 for $2526.
Courtney filed a petition to dissolve the parties’ marriage in August 2019.
She did not request temporary spousal or child support. An order “resolv[ing] all
temporary matters”—including custody, visitation, and video calls by James—was
filed on April 22, 2020.
Trial was held on January 7, 2021; the issues to be decided were the
distribution of certain marital assets, the setting aside of inherited assets, and
James’s child support obligation.1
Courtney testified that when she left the family home she withdrew $10,000
from the bank—about half the balance of the couple’s joint savings account—and
took $2500 cash—one-half of the cash the parties kept in a safe at home. She
1 The parties’ stipulation of joint legal custody, physical care with Courtney, and
supervised visitation for James was accepted by the court. Physical care and
visitation issues were not appealed.
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testified she used that money for “[l]iving expenses, childcare, feeding the kids.”
Courtney continued to pay the mortgage payment on the family home of $1255.40
every other month until February 2020. She also paid for James’s health insurance
through December 2019. Courtney testified she had spent $24,253.47 during the
parties’ separation related to the children’s childcare, health and dental insurance,
medical expenses, diapers, wipes, and vitamins. She asked the court to order
James to reimburse her for half of that amount. She acknowledged she had used
both child tax exemptions in her 2019 filing and refused to utilize the married-filing-
jointly option. She asked to be allowed both exemptions for her 2020 tax filing
because she had provided all of the children’s support.
With respect to child support, Courtney’s worksheet assumed James’s
gross income was $63,971 and calculated a child support amount for two children
of $1003.62 per month. She asked that James also pay one-half of childcare costs
for the children. She testified she intended to move out of her mother’s home and
into a separate residence with the children but would not be able to do so without
financial assistance. She stated she had not been able to afford childcare for both
children before their older child was in kindergarten and the younger child’s
enrollment in childcare allowed her to accept the higher-paying job.
Courtney submitted a letter from the children’s current childcare center
indicating the weekly cost for the older child’s care was $225 per week before she
entered kindergarten in September 2020, and for the younger child who was
enrolled in August 2020, the cost was $240 per week. Courtney also provided the
court a calculation for childcare expenses, listing a weekly cost for the older child
as $80 per week for forty weeks (during school year) and $200 per week for twelve
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weeks (summer months); and $240 per week for fifty-two weeks for the younger
child. She calculates childcare expenses at $1506.67 per month. She testified
she had researched other centers and “all of the centers around here . . . were
either comparative or more.”
Courtney proposed both parties keep their inherited property and James
keep the marital home and pay her a portion of the equity. Courtney acknowledged
the down payment for the home of $85,000 was made with James’s inherited
funds. Courtney testified James’s April 2020 appraisal of $215,000 was outdated.
She submitted a December 2020 appraisal valuing the home at $227,000. Noting
equity of over $180,000, she asked that James pay her $40,886. She also
proposed she be allowed to set aside the growth income on the premarital portion
of her 401(k) and divide the marital portion evenly.
For his part, James contended his gross annual income from employment
is accurately portrayed on his pay stub of December 18 in the amount of $51,712.
He testified he does not always work forty-hours per week and a calculation of his
child support obligation based upon forty-hour weeks for fifty-two weeks would not
accurately reflect his income. James also asserted Courtney’s mother was
providing care for the children so he should not be required to pay any portion of
the projected childcare costs.
The district court entered a dissolution decree in March which, in pertinent
part, ordered James to pay a guideline child support amount of $1003.62 per
month for child support commencing March 1, 2021, and an additional $750 per
month for childcare; ruled that each party would be entitled to the growth in their
premarital retirement investments; awarded a judgment in favor of Courtney and
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against James for $12,126.74 as reimbursement to Courtney for her claimed one-
half of the children’s expenses during their separation; divided the parties’ assets
and liabilities; and ordered James to make an equalization payment of $40,886.
In concluding a variance from the guideline child support amount was
necessary, the court wrote:
Support is calculated according to the Child Support
Guidelines (the Guidelines) based upon Courtney’s annual income
from all sources of $64,105.00 and James’[s] annual income from all
sources of $63,971.00.
Iowa Court Rule 9.11A permits the court to vary the amount
of child support that would result from applying the Guidelines based
upon the custodial parent’s child-care expenses. “In determining
whether variance is warranted under this rule and rule 9.11, the court
should consider the fact that childcare expenses are not specifically
included in the economic data used to establish the support amounts
in the Schedule of Basic Support Obligations.”
Under Iowa Court Rule 9.11, the court is not to vary from the
amount of child support that would result from application of the
Guidelines without a written finding that the Guidelines would be
unjust or inappropriate. Two criteria inform that determination:
(1) “substantial injustice would result to the payor, payee, or
children,” and (2) “adjustments are necessary to provide for the
needs of the children or to do justice between the parties, payor, or
payee under the special circumstances of the case.”
Courtney presented credible evidence that her childcare
expenses for both children is $1506.67 per month. Thus, she pays
more for childcare than the child support she will receive. James
presented no evidence that the cost for childcare is excessive.
Courtney testified that she researched options and the cost for the
facility she chose is consistent, or even a little lower, than other
childcare providers. Courtney also testified she took a higher-paying
job in November 2020 only because [R.N.] was put into daycare. If
[R.N.] was not in daycare, Courtney would be earning less and
James’[s] child support obligation for the children would be
increased.
The court therefore finds that deviation from the Guidelines is
necessary to provide for the reasonable needs of [M.N.] and [R.N.],
to do justice between Courtney and James, and because substantial
injustice would result without deviation. James shall pay Courtney
$750.00 per month for childcare in addition to the child support of
$1003.62 per month.
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James filed a motion for amended and expanded findings, asserting child
support should be based on a gross income of $51,712,2 the court’s variance from
the guidelines was “oppressive” and without evidentiary support, and there is no
authority to order retroactive childcare where Courtney did not apply for temporary
support. Courtney resisted.
The district court modified the decree in part. With respect to child support,
the court ruled:
James argues his support obligation in the Decree, coupled
with a variance upward for childcare for the parties’ children, is
onerous. Upon reconsideration of the evidence presented, the court
agrees that James’[s] support obligation should be reduced to
$858.05 per month for two children and further reduced to $621.64
per month when there is only one child for support purposes.
The court declines to reduce or vacate the childcare variance
of $750.00 per month as requested by James. He is leaving the
marriage with substantial assets, worth more than twice the value of
the assets Courtney is leaving the marriage with. Going forward
either party may seek modification if either party’s circumstances
related to these issues change.
As for the court’s order of retroactive support, the court “vacate[d] the requirement
that James pay Courtney $12,126.74 in retroactive child support.”
James appeals and Courtney cross-appeals. James challenges the
variance from guideline amounts for childcare expenses. Courtney asserts the
court’s child support calculations are faulty because James’s annual gross income
is greater than $51,712. She also contends it is inequitable not to order James to
2 The $51,712 gross income James uses is the “YTD Amount” on his check stub
dated December 18, 2020, for the pay period November 28 to December 11. Using
this figure, James argued his child support payment should be $858.05 per month
for two children and $621.64 per month for one child.
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share in the children’s expenses in 2019 and 2020. Both parties seek an award of
appellate attorney fees.
II. Scope and Standards of Review.
We review equity cases such as dissolution of marriage de novo. In re
Marriage of Mann, 943 N.W.2d 15, 18 (Iowa 2020). We give the district court
considerable latitude and give weight to the court’s factual findings, but we are not
bound by them. In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). “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) (citation omitted).
III. Child Support and Variance from Guideline Amount.
James appeals the court’s variance from the guideline child support
amount. He contends the trial court inequitably varied from child support
guidelines in ordering him to pay an additional $750 for childcare expenses. He
states, “At no time during the marriage did James and Courtney ever pay over
$1500 per month in daycare expenses.”
Courtney cross-appeals the district court’s calculations for basic child
support, contending the court should recalculate support based on an income for
James of $62,295. She reaches this figure as follows:
James introduced his paystubs from 2020 to determine his income
for child support purposes. James admitted that he did not start work
in 2020 until January 22 because he was in treatment. Those
paystubs showed that his earnings for 2020, through December 11,
totaled $54,463.75. His earnings December 12 through December
25, 2020[,] totaled $2526.00. Using these [forty-seven]
representative weeks (last week of January through December 25),
[and extrapolating to fifty-two weeks] his average weekly income was
$1197.99, making his annual income $62,295.66.
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Courtney maintains the variance from basic child support guideline amounts is
warranted, citing Iowa Court Rule 9.11A. Because the issues are intertwined, we
address them together.
Basic principles. A parent has a duty to support children financially based
on the parent’s ability to pay. Iowa Ct. R. 9.3(1); In re Marriage of Salmon, 519
N.W.2d 94, 97 (Iowa Ct. App. 1994) (considering “earning capacity rather than
actual earnings”). “Under the law there is a rebuttable presumption that the
amount of child support which would result from the application of the [child
support] guidelines is correct.” In re Marriage of Powell, 474 N.W.2d 531, 533
(Iowa 1991); Iowa Ct. R. 9.4. To determine child support, courts calculate each
party’s net monthly income by taking their gross monthly income and factoring in
specifically enumerated deductions. Iowa Ct. R. 9.5. The guidelines take into
account the reasonable costs of living, including educational expenses, as well
expenses for clothes, school supplies, and recreational activities. In re Marriage
of Gordon, 540 N.W.2d 289, 292 (Iowa Ct. App. 1995). But “child care expenses
are not specifically included in the economic data used to establish the support
amounts.” Iowa Ct. R. 9.11A. Under rule 9.4, the guideline “amount may be
adjusted upward or downward, however, if the court finds such adjustment
necessary to provide for the needs of the children or to do justice between the
parties under the special circumstances of the case.”
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James’s gross income. On our de novo review, we conclude it was error
for the district court to use the figure James asserts is his annual income—
$51,712. This figure does not show what James earns in a fifty-two week period;
it does not include any income for January 1–22, because James was in treatment.
He testified he returned to work the last week of January after his discharge. Nor
does it include income from hours he worked from December 14–31.
It is undisputed James earns thirty dollars per hour. Using the five, biweekly
paystubs provided to the court, James worked an average of 36.54 hours per week
from October 3 to December 24, 2020. James testified this was representative of
the number of hours he worked on a biweekly basis. While we understand James
is not guaranteed forty hours per week; it is also true he sometimes works
overtime, for which he gets time and a half. We have no indication James receives
paid time off. If we presume James works 36.54 hours per week, his weekly
income is $1096.20. So Courtney has presented a reasonable basis for finding
his average weekly earnings is $1197.99. Either calculation results in an annual
income exceeding the $51,721 figure the district court adopted.
Because the court’s child support calculation begins with a faulty premise,
we remand for a determination of James’s annual income and a recalculation of
child support under the guidelines.
Variance for childcare expenses. Rule 9.11A specifically anticipates a
variance from the basic child support guidelines where a custodial parent has
childcare expenses. The rule was recently amended to provide more guidance,
which we find instructive here:
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(1) “Child care expenses” means actual, annualized child care
expenses the custodial parent pays for the child(ren) in the pending
matter that are reasonably necessary to enable the parent to be
employed, attend education or training activities, or conduct a job
search, less any third party reimbursements and any anticipated
child care tax credits.
....
(3) In determining the amount of the variance, the court may
consider each parent’s proportional share of income. The amount of
the child care expense variance allowed should not exceed the
noncustodial parent’s proportional share of income. The support
order must specify the amount of the basic support obligation
calculated before the child care expense variance, the amount of the
child care expense variance allowed, the combined amount of the
basic support obligation and the child care expense variance, and
when the child care expense variance will end. Absent compelling
circumstances, the child care expense variance should not extend
beyond the time when there are no longer any children under the age
of [thirteen] who are subject to the support order. When a child care
expense variance ends pursuant to the terms of the support order,
support will automatically adjust to the amount of the basic support
obligation without a child care expense variance.
(4) When considering a variance, child care expenses are to
be considered independent of any amount computed by use of the
guidelines or any other grounds for variance.
(5) When a variance is ordered pursuant to rule 9.11A, no
deduction for child care expenses under rule 9.5(2)(j) will be allowed
in calculating either party’s net monthly income to determine the
amount of the basic support obligation.
(6) A change in the amount of child care expenses incurred
by the custodial parent is a factor to be considered in determining
whether a substantial change in circumstances exists to modify a
support order that includes a variance under rule 9.11A.
Iowa Ct. R. 9.11A; see In re Marriage of McCabe, No. 20-1121, 2022 WL 468738,
at *5–6 (Iowa Ct. App. Feb. 16, 2022) (discussing variance from child support
guidelines for four children); Jass v. Atkinson, No. 18-1790, 2019 WL 2371925, at
*7–8 (Iowa Ct. App. June 5, 2019) (noting “[r]ule 9.11A expressly cross references
rule 9.11, which requires written findings to support a variance from the guidelines”
and noting any “variance should have an end date”).
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We agree with the district court that Courtney proved the childcare
expenses for both children averaged $1506 per month and those expenses were
“reasonably necessary to enable the parent to be employed.” The district court did
not determine if the variance exceeded James’s proportional share of income or
state when the variance will end. Iowa Ct. R. 9.11A.
Because we are remanding for a recalculation of child support based on a
different gross annual income for James, we observe the district court “may
consider each parent’s proportional share of income.” Any variance “should not
exceed the noncustodial parent’s proportional share of income” and “[t]he support
order must specify the amount of the basic support obligation calculated before the
child care expense variance, the amount of the child care expense variance
allowed, the combined amount of the basic support obligation and the child care
expense variance, and when the child care expense variance will end.” Iowa Ct.
R. 9.11A (2022). The district court has the discretion to either hold a further
hearing, decide the issue on the record made, or request additional submissions
from the parties. We do not retain jurisdiction. See McCabe, 2022 WL 468738,
at *6.
IV. Retroactive Expenses.
Courtney asserts the court erred in vacating its initial award to her of
$12,126.74, which represents one-half of the amount she expended for the
children during the parties’ separation. She argues her expenditures during
separation may be considered as part of the division of marital property and debt,
citing In re Marriage of Decker, 666 N.W.2d 175, 181 (Iowa Ct. App. 2003), and In
re Marriage of Nibbelink, No. 19-0766, 2020 WL 115783, at *4–5 (Iowa Ct. App.
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Jan. 9, 2020). “Expenditures made during a separation should, in some cases, be
considered in making an equitable distribution.” Decker, 666 N.W.2d at 181. We
find the cited cases are distinguishable.
In Decker; the question was whether the spouse who had been making
mortgage payments during separation was entitled to the additional equity in the
marital home because of those payments. Id. This court concluded the spouse
was not entitled to such credit in the circumstances. Id. The Nibbelink case dealt
with the question of whether one spouse’s post-separation credit card debt should
be considered marital debt. 2020 WL 115783, at *4. Noting the spouse was
receiving temporary spousal and child support, this court concluded the spouse
“does not provide a reasonable basis for concluding her credit card debt was
marital debt. We find no inequity under the circumstances.” Id. at *5.
Iowa Code section 598.10 (2019) authorizes the district court to order
temporary support “when a claim for temporary support is made by the petitioner
in the petition, or upon the application of either party, after service of the original
notice and when no application is made in the petition . . . .” Courtney made no
claim for temporary support in the petition for dissolution or in her application on
temporary matters. Instead, Courtney sought reimbursement for one-half of her
2019 and 2020 expenditures related specifically for the children’s care. We are
not aware of any authority allowing the court to grant retroactive temporary child
support. We note Courtney acknowledged she could have requested temporary
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child support. She also acknowledged she took $12,500 of marital funds with her
when she left.3 Equity does not require that we grant her request.
V. Appellate Attorney Fees.
James and Courtney both seek an award of appellate attorney fees. James
contends he should be awarded attorney fees because he has had “to bring the
inequitable and oppressive child support variance to this court’s attention.” For her
part, Courtney asserts James should be required to pay her attorney fees “based
on lack of merit” in his arguments.
“Appellate attorney fees are not a matter of right, but rather rest in this
court’s discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).
In determining whether to award appellate attorney fees, we consider “the needs
of the party seeking the award, the ability of the other party to pay, and the relative
merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993).
Neither party has submitted an affidavit of attorney fees. We conclude each party
shall be responsible for their own appellate attorney fees and one half of the court
costs.
We affirm the dissolution of the marriage and the distribution of marital
property. However, the district court’s findings concerning James’s income are not
supported in this record. Therefore, we reverse and remand for further findings
and recalculation of James’s child support obligation.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
3 The district court’s ruling on the motion to enlarge mistakenly states Courtney
took $14,500 with her. The record does not support that finding.