IN THE COURT OF APPEALS OF IOWA
No. 21-0156
Filed January 12, 2022
IN RE THE MARRIAGE OF KATHERINE C. LYGA
AND DALE E. LYGA JR.
Upon the Petition of
KATHERINE C. LYGA, n/k/a KATHERINE C. BANKERT,
Petitioner-Appellee,
And Concerning
DALE E. LYGA JR.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,
Judge.
Dale Lyga appeals the decree dissolving his marriage to Katherine Lyga.
AFFIRMED AS MODIFIED.
Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for
appellant.
Kristen A. Shaffer of Shuttleworth & Ingersoll, P.L.C., Coralville, for
appellee.
Considered by Mullins, P.J., and May and Ahlers, JJ.
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MULLINS, Presiding Judge.
Dale Lyga appeals the decree dissolving his marriage to Katherine Lyga,
now known as Katherine Bankert. He argues the district court erred in placing
impermissible contingencies on visitation with the parties’ children, severely and
unreasonably limiting his visitation, awarding sole legal custody to Katherine,
miscalculating his income for purposes of child support, and failing to assign any
Arizona debt to Katherine. Katherine requests an award of attorney fees on
appeal.
I. Background Facts and Proceedings
Dale and Katherine married in 2015. The parties share two young children.
Katherine claims there has been emotional, verbal, and physical abuse over the
course of the parties’ marriage. Several of the incidents have involved Dale
consuming large amounts of alcohol. Katherine asserts that Dale has at times
threatened to kill her and her parents, using weapons the parties possessed in the
marital home.
The parties initially lived in Iowa but moved to Arizona, where Dale secured
a lucrative job. As the parties’ marriage continued to deteriorate, Katherine made
a plan to leave the home with the children and relocate to Iowa. Katherine began
proceedings for a protective order in Arizona, but the process was completed
following the relocation to Iowa. Katherine and Dale were able to agree to video
visits, but Dale missed many. Dale’s attempts to visit the children in Iowa were
minimal. He eventually relocated to Illinois, incurring $93,000.00 in debt due to
bonuses that had to be repaid to his employer in Arizona because Dale did not
maintain employment for the contractual length of time.
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Katherine petitioned for dissolution of the marriage in April 2020. Trial was
held in January 2021. The district court awarded Katherine sole legal custody,
granted Dale visitation, and ordered him to pay child support. The court also found
Dale had dissipated assets. Dale appeals.
II. Standard of Review
We review dissolutions of marriage de novo. In re Marriage of Miller, 956
N.W.2d 630, 635 (Iowa 2021). “We give weight to the factual determinations made
by the district court; however, their findings are not binding upon [this court].” Id.
(alteration in original) (quoting In re Marriage of Mann, 943 N.W.2d 15, 18 (Iowa
2020)). As to child custody, our principal consideration is the best interests of the
children. Iowa R. App. P. 6.904(3)(o); see In re Marriage of Weidner, 338 N.W.2d
351, 356 (Iowa 1983).
III. Analysis
A. Legal Custody
Dale argues the district court erred in failing to grant the parties joint legal
custody of the two children. Katherine argues the history of abuse in the family
justifies the award of sole legal custody. “‘Legal custody’ carries with it certain
rights and responsibilities, including but not limited to ‘decision making affecting
the child’s legal status, medical care, education, extracurricular activities, and
religious instruction.’” In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007)
(citation omitted). “A parent who is awarded legal custody has the ability to
participate in fundamental decisions about the child’s life.” Id. If either parent asks
the court for joint legal custody, a court must consider the factors set forth in Iowa
Code section 598.41(3) (2020). Those factors, in relevant part, include:
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a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child.
....
g. Whether one or both of the parents agree or are opposed
to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in section
236.2, exists. In determining whether a history of domestic abuse
exists, the court’s consideration shall include but is not limited to
commencement of an action pursuant to section 236.3, the issuance
of a protective order against the parent or the issuance of a court
order or consent agreement pursuant to section 236.5, the issuance
of an emergency order pursuant to section 236.6, the holding of a
parent in contempt pursuant to section 664A.7, the response of a
peace officer to the scene of alleged domestic abuse or to the arrest
of a parent following response to a report of alleged domestic abuse,
or a conviction for domestic abuse assault pursuant to section
708.2A.
....
Iowa Code § 598.41(3).
The district court engaged in a thorough review of the evidence presented
at trial, including testimony from Katherine and other witnesses about the history
of domestic violence in the home. Katherine’s testimony revealed multiple
instances when Dale’s conduct placed her and the children in physical danger.
Testimony also revealed that Dale threatened the lives of Katherine and her
parents. The district court found “[t]he evidence established a pattern of physical,
emotional and verbal abuse clearly intended to control [Katherine] and prevent her
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from leaving the relationship. This pattern included regular threats of violence.” It
found that a history of domestic abuse was established, triggering a presumption
against joint legal custody. See id. § 598.41(1)(b). The court then continued its
evaluation of the particular facts and circumstances in the record, including
Katherine’s history as the primary caregiver of the children, her history of providing
stable care for the children, credible testimony that Dale has issues with alcohol
abuse, and Dale’s history of becoming angry when caring for the children. The
district court ultimately considered the factors enumerated in section 598.41(3) and
awarded sole legal custody of the two children to Katherine.
We review the record de novo, but give weight to the district court’s factual
findings. In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013). Katherine’s
testimony on the abusive nature of the parties’ marriage, although contested by
Dale, was credible. The district court’s evaluation of the section 598.41(3) factors
was thorough and its findings are supported by the evidence in the record. The
decree granting sole legal custody of the children to Katherine is in the children’s
best interest. We affirm the award of sole legal custody to Katherine.
B. Visitation
Dale argues the district court erred in placing contingencies on and limiting
his visitation with the children. Katherine argues the district court structured the
visitation arrangement to protect the children.
The district court imposed a step-up scheme, which provides Dale with
more unsupervised visitation with the children upon successful and consistent
exercise of visitation. The geographical location of visits has been limited for an
extended period of time to maintain physical proximity to Katherine. Dale is also
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barred from consuming alcohol of any type beginning twelve hours prior to
visitation and extending until the children are returned to Katherine. Dale has been
ordered to either personally transport the children or be physically present when
returning the children to Katherine’s care so that she “or her designee [may] smell
alcohol or see signs of intoxication if Dale has been drinking prior to the exchange.”
Iowa Code section 598.41(1)(a) provides that “liberal visitation rights” shall
be ordered to
assure the child the opportunity for the maximum continuing physical
and emotional contact with both parents after the parents have
separated or dissolved the marriage, and which will encourage
parents to share the rights and responsibilities of raising the child
unless direct physical harm or significant emotional harm to the child,
other children, or a parent is likely to result from such contact with
one parent.
But, a court must evaluate the situation for reasonability and the best interests of
children. Iowa Code § 598.41(1)(a). This court has previously stated,
We strongly disapprove, however, of custody provisions, whether
stipulated by the parties or mandated by the court, that predetermine
what future circumstances will warrant a future modification. A court
should not try to predict the future for families, nor should it try to limit
or control their actions by such provisions.
In re Marriage of Thielges, 623 N.W.2d 232, 237 (Iowa Ct. App. 2000). “Any
change of circumstances must be weighed with all the other relevant conditions
affecting physical care.” Id. at 238. Furthermore, “[i]t is well established that the
district court is the only entity that can modify a custody or visitation order, subject
to the review of the appellate courts.” In re Marriage of Stephens, 810 N.W.2d
523, 530 (Iowa Ct. App. 2012). However, a self-executing graduated visitation
arrangement that fosters rebuilding parent-child relationships may be in the best
interests of a child.
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On our review of the record, we agree with the district court that under the
circumstances of this case, a step-up scheme and geographical limitation impose
a reasonable structure to provide safety for the children and are in their best
interests, but we find a few of the provisions overreaching. We agree with the
district court’s decision to protect the children from Dale in the event he has
consumed alcohol and agree the children need time to rebuild their relationships
with their father through transitional arrangements designed for their protection.
But we are troubled by the requirement that the progressive steps for increasing
visitation require consecutive visitations, excusable only for illness of the children,
and the automatic restarting of the progressive steps for an unexcused failure. It
appears obvious that some of the provisions in the decree are efforts to wrest
control from Dale and provide more control to Katherine, but our focus must remain
on best interests of the children.
Consequently, we modify the visitation provisions to remove the
requirement of “consecutive” in each instance, except the consecutive weeks of
summer vacation visitation, and modify to remove the “start the count of visitations
over” provisions. We also modify said visitation provisions to delete the sentence
concerning sanctions for contempt and the sentence that follows. 1 If Dale fails to
regularly exercise visitation as ordered, he risks jeopardizing his relationship with
his children.
1 This is not intended to limit the available remedies in the event of a violation of
visitation provisions.
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C. Child Support
Dale argues the district court erred in calculating his income for the
purposes of child support. A parent has a duty to support children financially based
on the parent’s ability to pay. In re Marriage of Salmon, 519 N.W.2d 94, 97 (Iowa
Ct. App. 1994). Iowa courts have used average earnings rather than a parent’s
actual earnings for purposes of calculating child support when that parent’s income
is, or has been, subject to fluctuation. In re Marriage of Hagerla, 698 N.W.2d 329,
332 (Iowa Ct. App. 2005). “Iowa case law supports the proposition that in the
determination of child support or modification of a support order, a party may not
claim inability to pay child support when that inability is self-inflicted or voluntary.”
In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993) (collecting cases). The
spirit of that proposition is “to prevent parents from gaining an advantage by
reducing their earning capacity and ability to pay child support through improper
intent or reckless conduct.” Id.
Even though Dale relocated following the parties’ separation and got a job
in Illinois earning less money than when he lived in Arizona, there is no evidence
that the income reduction was aimed at reducing his child-support liability. Dale
testified that the relocation was an effort to be geographically closer to his children
and make in-person visits more affordable and, thus, more frequent. Dale does
not contest the fact that the $118,000 salary listed on his job offer letter was used
by the district court. He argues the additional $13,722 he receives in installments
of $527 every two weeks as a license premium should not have been added to his
annual salary. The record shows that throughout his history of employment, Dale
has consistently received premium payments in addition to his annual salary. See
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In re Marriage of Brown, 487 N.W.2d 331, 333–34 (Iowa 1992). There is nothing
in the record to suggest that the additional income will be discontinued. Finding
that the district court’s decision to add the premium payments to his annual salary
is not speculative, but rests on a consistent pattern of payment, we agree with the
district court’s calculation of Dale’s income for the purposes of calculating child
support. Id.
D. Debt
Dale argues the district court erred in failing to distribute any of the $93,000
debt from the family’s relocation to Arizona, and Dale’s return to the Midwest, to
Katherine.
The district court found the following facts regarding the debt. “Had [Dale]
stayed just a few months longer [in Arizona] he would have avoided any obligation
to pay back relocation funds of $63,588.74. If he had stayed just a little over a
year longer he would have avoided the obligation to pay back $30,000.00 in sign-
on bonuses.” The district court then found “that Dale dissipated the marital estate
by incurring the debt.” The court noted the benefit and purpose of the debt was
for Dale and that “there was not a great need for this expenditure and it was an
extravagant amount.” Finally, the district court noted that Dale’s move in
December 2020 did not ultimately serve its purpose—he was unable to exercise
more than a handful of in-person visits because of COVID-19 restrictions and the
visitation center’s availability.
“We have previously held dissipation of assets is a proper consideration
when dividing property.” In re Marriage of Fennelly, 737 N.W.2d 97, 104 (Iowa
2007). In evaluating whether assets have been dissipated, “courts must decide
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‘(1) whether the alleged purpose of the expenditure is supported by the evidence,
and if so, (2) whether that purpose amounts to dissipation under the
circumstances.’” Id. (quoting Lee R. Russ, Spouse’s Dissipation of Marital Assets
Prior to Divorce as Factor in Divorce Court’s Determination of Property Division,
41 A.L.R. 4th 416,421 (1985)). The second prong requires the court to consider
factors including:
(1) the proximity of the expenditure to the parties’ separation,
(2) whether the expenditure was typical of expenditures made by the
parties prior to the breakdown of the marriage, (3) whether the
expenditure benefitted the “joint” marital enterprise or was for the
benefit of one spouse to the exclusion of the other, and (4) the need
for, and the amount of, the expenditure.
Id. (citations omitted). Debt acquired by one party over several years may be
classified in part as waste and in other part legitimate expenses. Id. at 105–06.
Debt classified as waste is set aside as debt for the spending party and is not
considered in the distribution of property. Id. at 106.
Dale asserts that he incurred the debt in leaving his job in Arizona to avoid
spending approximately $1000 per visit to see the children in person. Katherine
did not contest that testimony. The debt was incurred following the parties’
separation, after Katherine secured a protective order allowing Dale only
supervised visitation with the children. The stipend was provided based on the
decision of both Dale and Katherine to move to Arizona, but the debt was incurred
unilaterally, with no input from Katherine. In fact, it was incurred after Katherine
fled the marital home with the children. Dale incurred the debt to avoid incurring
other debt—which would be attributable only to Dale in his efforts to exercise
visitation with the children. And as the district court pointed out in a footnote, he
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could have made ninety-three visits to the children for the same cost. We agree
with the district court that Dale was unable to rebut Katherine’s proof that he
dissipated the assets and that it should be his responsibility to repay.
E. Appellate Attorney Fees
Katherine requests an award of appellate attorney fees, arguing that she
has been forced to use funds to support the children and pay her attorney, and
requests an award of at least $7500. “Appellate attorney fees are not a matter of
right, but rather rest in [the appellate] court’s discretion.” In re Marriage of Okland,
669 N.W.2d 260, 270 (Iowa 2005). Appellate courts are tasked with considering
factors including “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 McDermott,
827 N.W.2d 671, 687 (Iowa 2013) (quoting Okland, 399 N.W.2d at 270). We
determine Katherine is entitled to an award of some appellate attorney fees, but
because Katherine’s affidavit of attorney fees does not include an itemization of
fees incurred, we remand to the district court to determine a reasonable award of
appellate attorney fees upon an application for fees supported by an itemization of
fees and expenses, to which Dale may file a response. See In re Marriage of
Heiar, 954 N.W.2d 464, 473–74 (Iowa Ct. App. 2020). Costs on appeal are
assessed to Dale.
IV. Conclusion
On our de novo review of the record, we agree with the district court that it
is in the best interests of the parties’ children to award sole legal custody to
Katherine. We also agree that the step-up visitation plan is in the best interests of
the children, subject to our modifications set forth above. We agree with the district
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court that Dale unilaterally incurred the $93,000 debt when he relocated from
Arizona to Iowa for his own purposes and benefit. Thus, the order that the debt be
assigned to Dale is affirmed. We remand to the district court the issue of appellate
attorney fees, and we tax costs to Dale.
AFFIRMED AS MODIFIED.