IN RE THE MARRIAGE OF KAREN WEIDAUER AND MARK JOSEPH WEIDAUER Upon the Petition of KAREN WEIDAUER, Petitioner-Appellee, And Concerning MARK JOSEPH WEIDAUER, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-335 / 08-1293
Filed July 22, 2009
IN RE THE MARRIAGE OF KAREN WEIDAUER AND MARK JOSEPH
WEIDAUER
Upon the Petition of
KAREN WEIDAUER,
Petitioner-Appellee,
And Concerning
MARK JOSEPH WEIDAUER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pocahontas County, Joel E.
Swanson, Judge.
Respondent appeals a district court order denying his request to receive
credit for child support payments he made directly to the children’s mother.
REVERSED AND REMANDED.
Dan T. McGrevey, Fort Dodge, for appellant.
Karen Weidauer, Brentwood, California, appellee pro se.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
2
MILLER, J.
Mark Weidauer appeals a district court order denying his request to
receive credit for child support payments he made directly to his children’s
mother, Karen Weidauer. We reverse and remand.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Mark and Karen Weidauer were divorced in 1996. The decree dissolving
their marriage placed the parties’ four children in Karen’s physical care and
ordered Mark to pay $503.48 per month in child support to the Pocahontas
County clerk of court unless directed to make such payments to the collection
services center.
From September 2001 until May 2004, Mark wired money
directly to Karen on an almost monthly basis.1 The transfers ranged from $500 to
$2000, although most were for $650. Karen received a total of $22,750 from
Mark during that time period.
In September 2004, Karen requested assistance from the Child Support
Recovery Unit (CSRU) of the Iowa Department of Human Services to enforce the
support provisions of the dissolution decree. After CSRU notified Mark that he
owed delinquent child support,2 he filed a petition in November 2007 requesting
the district court to enter an order for credit and satisfaction of child support
payments he made directly to Karen.
1
The record as to Mark’s child support payment history prior to September 2001 is
unclear. Karen did attach a “certified payment record” to her appellate brief. However,
that document is not in the court file, nor was it entered as an exhibit at the hearing. We
do not consider facts outside the record on appeal. See Rasmussen v. Yentes, 522
N.W.2d 844, 846 (Iowa Ct. App. 1994).
2
The amount Mark is in arrears on his child support obligation is not in the record.
3
At the hearing on his petition, Mark testified that Karen had asked him to
pay child support directly to her through wire transfers. As exhibits, he presented
copies of each wire transfer he had made to Karen.
Karen acknowledged
receiving the payments from Mark, testifying “I’m not denying that I . . . call[ed]
Mark and ask[ed] him for his help in getting the items that his children needed,”
such as “clothes,” “school items, school lunch tickets,” “medical bills,” and a
vehicle for their son. But she testified that it was Mark who “chose to wire the
money into my account, because at that time . . . it would make things easier.”
The district court entered an order in July 2008, denying Mark’s request
for a credit on his official support payment record for the money he paid directly
to Karen.
The court determined he did not satisfy either of the statutory
exceptions to the mandate in Iowa Code section 598.22(1) (2007) that no credit
be granted for child support payments made to anyone other than the clerk of
court or collection services center. Mark appeals.
II.
SCOPE AND STANDARDS OF REVIEW.
Our review in this equitable action is de novo. Iowa R. App. P. 6.4. We
give weight to the fact findings of the district court, especially when considering
the credibility of witnesses, but are not bound by them. Iowa R. App. 6.14(6)(g).
III.
MERITS.
Iowa Code section 598.22(1) provides that all orders for permanent child
support shall direct the payment of those sums to the clerk of the district court or
the collection services center. The section states, “Payments to persons other
than the clerk of the district court and the collection services center do not satisfy
4
the support obligations created by the orders or judgments.”
Iowa Code
§ 598.22(1). “The rule is simple. A child support obligor will only receive credit
for child support payments made to the appropriate clerk of court or to the
collection services center.” Hurd v. Iowa Dep’t of Human Servs., 580 N.W.2d
383, 386 (Iowa 1998).
Prior to July 1, 2005, section 598.22A(1) (2005) set forth the sole statutory
exception3 to this rule as follows:
Notwithstanding sections 252B.14 and 598.22, support
payments ordered pursuant to any support chapter for orders
entered on or after July 1, 1985, which are not made pursuant to
the provisions of section 252B.14 or 598.22, shall be credited only
as provided in this section.
1. For payment made pursuant to an order, the clerk of the
district court or collection services center shall record a satisfaction
as a credit on the official support payment record if its validity is
confirmed by the court upon submission of an affidavit by the
person entitled to receive the payment, after notice is given to all
parties.
(Emphasis added.)
Our legislature amended that provision in 2005, adding a second statutory
exception to the rule.
See 2005 Iowa Acts, ch. 112, § 18.
The amended
subsection now reads:
1. For payment made pursuant to an order, the clerk of the
district court or collection services center shall record a satisfaction
as a credit on the official support payment record if its validity is
confirmed by the court upon submission of an affidavit by the
person entitled to receive the payment or upon submission of
documentation of the financial instrument used in the payment of
the support by the person ordered to pay support, after notice is
given to all parties.
3
Our courts have additionally recognized that a party may be estopped from collecting a
child support obligation after promising to enter a satisfaction of judgment for out-of-court
child support payments. In re Marriage of Harvey, 523 N.W.2d 755, 756-57 (Iowa 1994);
In re Marriage of Yanda, 528 N.W.2d 642, 644 (Iowa Ct. App. 1994).
5
Iowa Code § 598.22A(1) (2007) (emphasis added).
In its initial order denying Mark’s petition, the district court determined the
“only statutory exception” in section 598.22A(1) did not apply because Karen had
not submitted an affidavit. Mark filed a motion requesting the court to reconsider
its ruling based on the second exception in section 598.22A(1). The court denied
Mark’s motion, stating it did not believe the amendment to the statute created
another exception “but merely another process by which the person entitled to
receive payments is given the opportunity to object or concur.”
The court
concluded Mark “has not offered proof sufficient for the Court to allow credit” for
the payments he made directly to Karen because she “did not agree that these
amounts should be accepted as child support payments.” Upon our de novo
review, we believe the district court erred in so concluding.
Mark testified at the hearing on his petition that he began wiring his child
support payments directly to Karen because she had asked him to do so. He
submitted copies of the wire transfers he made to Karen from September 2001
through May 2004. That documentation showed he made a payment to her
nearly every month in that period of time. The first two payments were for $2000.
The majority of the subsequent payments were for $650, although the amounts
did vary occasionally. The transfers totaled $22,750.4
In her brief on appeal, Karen states, “It is true that no one involved with
this litigation doubts that Mark paid $22,750 and that Karen received it.” She
argues, however, that money was a “gift” from Mark “above and beyond court
4
We note the total amount of child support Mark owed under the parties’ decree during
this thirty-three month time period was $16,614.84.
6
ordered child support payments.”
See, e.g., In re Marriage of Caswell, 480
N.W.2d 38, 40 (Iowa 1992) (stating Christmas and birthday gifts from a child
support obligor would clearly not discharge the support obligation). Yet at the
hearing on Mark’s petition, Karen testified she would contact Mark “at different
times in regards to helping with his children. I would ask [for] money to help
purchase clothes, to purchase school items, school lunch tickets . . . and so
forth.”5 We believe those items directly relate to Mark’s support obligation for his
children. See Iowa Code § 598.21B(2)(a) (stating that child support is for the
“reasonable and necessary” expenses of a child). Moreover, the regularity of
Mark’s payments to Karen belies her contention that the payments were gifts.
We disagree with the district court that Karen’s refusal to “agree that these
amounts should be accepted as child support payments” dictates the result here.
To so conclude would virtually nullify the second statutory exception our
legislature saw fit to add to section 598.22A(1) in 2005 and ignore the plain
language of the statute. See Harvey, 523 N.W.2d at 757 (“A statutory mandate
cannot be ignored . . . .”); Caswell, 480 N.W.2d at 40 (“In accordance with wellestablished principles of statutory construction, a statute must be construed to
give effect to its plain language.”).
Mark submitted “documentation of the
financial instrument[s] used in the payment of the support” as required to invoke
5
Karen additionally testified that some of the money Mark sent to her was to help with
medical expenses for the children. The parties’ decree provided, in relevant part, “Each
party shall be responsible for the payment of one-half of any insurance deductible and
non-covered medical expenses for the children.” See also Iowa Ct. R. 9.12 (requiring
the court to enter an order for medical support in addition to a parent’s child support
obligation). However, the only medical expenses actually identified by Karen at the
hearing were for their daughter’s two knee surgeries in 1997 and 1998, several years
before Mark began making payments directly to Karen.
7
the second exception in section 598.22A(1). Furthermore, Karen testified she
used the money Mark regularly transferred to her bank account from September
2001 through May 2004 for “items that the children needed.”
We therefore
conclude that Mark is entitled to credit on his child support obligation for the
$22,750 in child support payments that he paid directly to Karen under section
598.22A(1).
IV.
CONCLUSION.
The district court should have granted Mark’s request for a credit on his
official support payment record for the $22,750 in child support payments that he
made directly to Karen. We accordingly reverse the judgment of the court and
remand for entry of an order under Iowa Code section 598.22A(1) confirming the
validity of those payments.
REVERSED AND REMANDED.
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