IN RE THE MARRIAGE OF RENEE L. PETERSON-BAYER AND ALBERT WILLIAM BAYER II Upon the Petition of RENEE L. PETERSON-BAYER, Petitioner-Appellant/Cross-Appellee, And Concerning ALBERT WILLIAM BAYER, II, Respondent-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-347 / 08-1695
Filed May 29, 2009
IN RE THE MARRIAGE OF RENEE L. PETERSON-BAYER AND ALBERT
WILLIAM BAYER II
Upon the Petition of
RENEE L. PETERSON-BAYER,
Petitioner-Appellant/Cross-Appellee,
And Concerning
ALBERT WILLIAM BAYER, II,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Monroe County, Joel D. Yates,
Judge.
Renee L. Peterson-Bayer appeals, and Albert William Bayer, II, crossappeals, from the decree dissolving their marriage. AFFIRMED AS MODIFIED
AND REMANDED.
Gregory G. Milani of Orsborn, Milani & Mitchell, L.L.P., Ottumwa, for
appellant.
Bryan J. Goldsmith of Webber, Gaumer & Emanuel, P.C., Ottumwa, for
appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Renee L. Peterson-Bayer appeals, and Albert William Bayer, II, crossappeals, from the September 2008 decree dissolving their marriage.
Renee
contends that (1) the district court should not have provided for shared care of
the parties’ daughter; rather, the child should be in her primary physical care, (2)
the child support was incorrectly computed, and (3) Albert should have been
found in contempt of court. Albert contends that (1) the shared care arrangement
should be affirmed, (2) the child support was correctly determined, (3) the district
court correctly ruled on the contempt issue, (4) the district court did not equitably
divide the parties’ assets and debts, and (5) the fees of the child custody
evaluator should have been assessed as court costs. We affirm as modified and
remand to the district court.
I. SCOPE OF REVIEW. Our scope of review is de novo. Iowa R. App. P.
6.4 ; In re Marriage of Olson, 705 N.W.2d 312, 313 (Iowa 2005); In re Marriage of
Schriner, 695 N.W.2d 493, 495-96 (Iowa 2005). Although weight is given to the
fact findings of the district court, the reviewing court is not bound by them. Iowa
R. App. P. 6.14(6)(g).
II. BACKGROUND AND PROCEEDINGS. Renee, born in 1974, and
Albert, born in 1965, were married in April of 2003. Their daughter was born in
April of 2004.
Albert had a prior marriage, and at the time of the parties’
marriage, his teenage son was in his care. In July of 2007, Renee filed a petition
seeking dissolution of the marriage, asking for an equitable division of assets.
She also requested that the parties’ daughter be placed in the parties’ joint legal
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custody, that she be named the physical custodian, and Albert be ordered to pay
child support.
Albert responded asking for reconciliation to preserve the
marriage, that the parties’ daughter be placed in the parties’ shared care, and the
assets and debts be equitably divided.
In August of 2007, Renee sought an order preventing either party from
selling, transferring, diminishing, spending, destroying, removing, damaging, or
concealing any of the parties’ property. The district court granted the application.
In September of 2007, the district court entered an order providing that the
daughter of the parties be placed in Renee’s physical care and that Albert have
reasonable visitation to be arranged by agreement, with Albert entitled to a
minimum of ten overnight visits and ten other visits each month, each of an
approximate three hours duration.1 Albert was ordered to pay Renee $678.82 a
month in child support. An application was made by Albert to appoint a child
custody investigator. Dr. Keri Kinnaird was appointed pursuant to Iowa Code
section 598.12(4) (2007) to investigate the parties, their home, and their
parenting abilities, among other things. Albert was ordered to pay $3000 to the
investigator which could be acquired through a draw on the parties’ line of farm
credit and would not be in violation of the order preserving personal property.
In June of 2008, Renee filed an application for rule to show cause why
Albert was not in contempt in failing to preserve certain personal property,
alleging that he (1) sold a horse trailer, (2) purchased a horse trailer, (3)
1
The provisions of the order were difficult to deal with and the parties agreed to a
schedule that Albert would have the child in his care from Wednesday evening to
Sunday evening at 6 p.m. every other weekend.
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purchased a hay rake, (4) secured transportation and made plans to vacation at
Disney World, (5) attempted to borrow on the parties’ line of credit, (6) attempted
to refinance a mortgage, (7) sold hay, (8) transferred ownership of a horse to his
name, (9) purchased a mower conditioner, and (10) increased the parties’ farm
operating note by about $20,000. Albert was served with the rule to show cause.
The matter came to trial on August 12 and 13, 2008, at which time the
district court considered both the dissolution and contempt actions. The parties
had agreed on a number of issues.
There were several property disputes
remaining and the issue of their daughter’s custody had not been resolved. On
September 8, 2008, the district court filed a decree which on September 24,
2008, it amended and enlarged.
The court found that the parties should share their daughter’s care,
alternating weeks and holidays. The court found Renee would owe child support
of $446.86 a month and Albert would owe $546.08. Offsetting the amounts the
result was that Albert was ordered to pay Renee $100 a month in child support.
Provision was made for medical support, and the dependency exemption for the
child was alternated between the parties. The court divided the property and
determined that Albert should pay Renee an equalization payment of $22,000 by
December 31, 2008. Interest was to accrue on any unpaid balance commencing
January 1, 2009, at the rate of five percent per annum.
III.
CUSTODY.
Renee contends the district court should not have
ordered shared care. She contends she has spent more time with the child than
has Albert, she and Albert do not have good communication, and the parties
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have disagreements and do not agree on the day-to-day approach of raising
children. She also contends that she was more credible than Albert and we
should give more weight to her testimony than did the district court.
Iowa Code section 598.41(5) provides in relevant part:
If joint legal custody is awarded to both parents, the court may
award joint physical care to both joint custodial parents upon the
request of either parent. . . . If the court denies the request for joint
physical care, the determination shall be accompanied by specific
findings of fact and conclusions of law that the awarding of joint
physical care is not in the best interest of the child.
Joint physical care is most likely to be in the best interest of the child (1) where
both parents have historically contributed to physical care in roughly the same
proportion, (2) have the ability to communicate with each other and show mutual
respect, and (3) there is no serious conflict between the parents.
See In re
Marriage of Hansen, 733 N.W.2d 683, 697-98 (Iowa 2007).
The district court carefully addressed these factors finding that while
Renee historically had been the child’s primary caregiver, Albert maintained an
active, ongoing commitment to the child which has increased as she has gotten
older. It also noted the custody evaluator testified the parents were civil and
mature and showed mutual respect to each other and there were no major
conflicts between them. The court also considered the fact the parties lived only
three miles from each other and both parents have strong ties to the Albia area
where they live, and there was no evidence either intended to move. The court
found Albert had a track record of parenting in that he has a grown son and
neither the son, nor his mother, complained about Albert’s ability to
communicate. The court also found the parents had shared goals and concerns
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about their daughter, who was on the right track developmentally or ahead of it,
and the child had adjusted well to her parents’ divorce. The court concluded
shared care or joint physical care was in the child’s best interest.
We find no reason to disagree with the district court’s careful assessment
of the issue. Both parents worked outside the home during the greater part of
the child’s life, and they both were involved with her care. The child’s preschool
teacher opined that both parties were good parents. She had seen Albert with
his older son because her son is a friend of his son. She also had observed
Renee with her daughter, and observed the couple after their separation and
found they were cooperative with each other. She had the child in preschool
during the 2007-2008 school year. She testified that the child did not seem to be
stressed by her parents’ separation, and she did not note any regression in the
child’s abilities or her attendance or attention span during the course of the year.
Dr. Kinnaird was contacted by both parties and did a child custody
evaluation. She interviewed the parents and talked to the daycare provider and
the preschool teacher. She testified she has done a number of such evaluations
and that the parties stood out because they were more civil and mature than
others she had seen, and she saw that as a strength that they both possessed.
She was of the opinion that shared physical care was something that these
parties could successfully accomplish.
On our de novo review, giving the required deference to the factual
findings of the district court, we affirm on this issue.
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IV.
CHILD SUPPORT.
Renee contends the child support was not
properly calculated because it did not include Albert’s bonus income. Renee
relies on the record of Albert’s social security tax earnings in making this
argument.2 She contends we should consider this average income of $48,685.
The district court found his average annual earning to be $44,811.52.3 We agree
with Renee that bonuses can be considered in determining child support
especially where, as here, there have been bonuses over a number of years.
See Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005). Albert argues that he
has no guaranteed bonus, his bonus was less in the current year than the prior
year, and under the current state of the economy there is no guarantee that he
shall receive a bonus.
Once evidence of extra income has been introduced, the burden is on the
recipient of the income to establish that it should be excluded from gross income
as uncertain and speculative.
Albert is not guaranteed a bonus as it is not
certain; it is based entirely on the profitability of his employer, Deere & Company,
and the labor agreement between his employer and the United Auto Workers.
He argues whether he will get a bonus in the future is affected by factors
including, a recession in the national economy, a recession in the agricultural
2
Wages that are subject to FICA do not necessarily represent net income for child
support purposes. In determining the correct amount of child support, the net monthly
income of the parties must be computed. State of Iowa ex rel. Nielsen v. Nielsen, 521
N.W.2d 735, 737 (Iowa 1994). Net monthly income means the gross monthly income
less deductions for certain identified items. Iowa Ct. R. 9.5. All income that is not
anomalous, uncertain, or speculative should be included. In re Marriage of McCurnin,
681 N.W.2d 322, 328 (Iowa 2004).
3
Albert and Renee’s income figures do not include farm losses that they both showed
on their previous year’s state income tax return.
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industry, an increase in the price of material and the decrease in sales or profits,
and the expiration and re-negotiation of his union’s contract with his employer.
Given the current state of the national and state economy, we decline to
determine that Albert has a bonus that is certain. Given that the bonus is not a
certainty but recognizing that Albert has received one in prior years, we modify
the opinion to provide that if Albert receives a bonus he shall retain thirty percent
to compensate him for the taxes thereon, and then after considering the parties’
respective incomes and the fact they share care of their daughter, we direct that
he pay to Renee as additional child support ten percent of the remaining bonus.
V. CONTEMPT. Renee contends the district court erred in failing to find
Albert in contempt of court.
The district court found Albert did add to an
operating loan without Renee’s permission or knowledge.
The court did not
condone the activities, but concluded it was not a willful or wanton violation of the
court’s order, and that most, if not all, of the expenses associated with the
operating loan were necessary to preserve either the parties’ homestead or farm
operations. While not holding Albert in contempt, the district court found him
responsible for any increase in the debt after August 13, 2007.
Renee argues that the increase in the farm operating loans as well as the
purchase of several items, and the paying for a trip to Disney World, demand that
he be found in contempt of court. Albert argues that the asset purchases did not
come from assets the parties had at the time of their separation, and that he
agreed to be responsible for the loans. He contends that the trip to Disney World
did not deplete assets the parties had at the time of their separation.
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Contempt must be established by proof beyond a reasonable doubt. Ary
v. Iowa Dist. Court, 735 N.W.2d 621, 624-25 (Iowa 2007). Substantial evidence
sufficient to support a finding of contempt is evidence that could convince a
rational trier of fact that the alleged contemner is guilty of contempt beyond a
reasonable doubt. Id.; In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa
1995). A finding of disobedience pursued “willfully” requires evidence of conduct
that is intentional and deliberate with a bad or evil purpose, or wanton and in
disregard of the rights of others, or contrary to a known duty, or unauthorized,
coupled with an unconcern whether the contemner had the right or not. Jacobo,
526 N.W.2d at 866. A failure to follow a court order is not willful if a contemner
shows the order was indefinite, or that the contemner was unable to comply with
the order. Ary, 735 N.W.2d at 624. The order preserving personal property
provides that the parties are “restrained from selling, transferring, spending,
destroying, removing, damaging or concealing any property of the parties.” We
cannot say that the instances Renee complains of were prohibited by the
language of the order. Because the order is indefinite as to Renee’s complaints,
we believe the district court was correct in not finding Albert in contempt. Even if
that were not so, we note that both parties continued to earn wages and spend
money during the separation period and we do not interpret the order as
requiring that the parties are limited in how their wages can be used. We find no
reason to reverse this holding of the district court.
VI.
PROPERTY DIVISION.
Albert on cross-appeal contends that the
division of assets was not equitable and we should modify to reduce the
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equalization payment he is required to make to Renee to $11,000. The partners
to a marriage are entitled to a just share of the property accumulated through
their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App.
1991).
Iowa courts do not require an equal percentage division.
Id.
determining factor is what is fair and equitable in each circumstance.
The
Id.
Adjudicating property rights in a dissolution action inextricably involves a
division between the parties of both their assets and liabilities.
Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980).
See In re
The district court
arrived at an equitable division of the property and we affirm it in its entirety.
VII. PAYMENT OF FEE OF KINNAIRD FOR CUSTODY EVALUATION.
Albert contends he should not have been required to pay Kinnaird’s cost
of $2232 but that it should be taxed as a court cost for the evaluation. The
district court in the decree provided that court costs should be divided equally.
The district court declined Albert’s request that the cost of Kinnaird’s evaluation
be divided equally, finding Kinnaird was listed as Albert’s witness and absent a
pretrial order stating Kinnaird’s fees should be shared equally by the parties, the
court refused to assess her fees as court costs. Albert contends Iowa Code
section 598.12(5)4 requires that Kinnaird’s fees be taxed as court costs. Kinnaird
4
Iowa Code section 598.12(5) provides in applicable part:
5. The court shall enter an order in favor of the attorney, the
guardian ad litem, or an appropriate agency for fees and disbursements,
and the amount shall be charged against the party responsible for court
costs unless the court determines that the party responsible for costs is
indigent, in which event the fees shall be borne by the county.
11
was appointed by the court under Iowa Code section 598.12(4).5 Kinnaird’s fees
should have been fixed as court costs.
VI. CONCLUSION. We affirm as modified on Renee’s appeal. We affirm
as modified on Albert’s cross-appeal and remand to the district court to
determine the fees of the child custody evaluator and fix the same as court costs.
The costs on appeal are divided equally between the parties. We award no
appellate attorney fees.
AFFIRMED AS MODIFIED AND REMANDED.
5
Iowa Code section 598.12(4) provides in applicable part:
4. The court may require that an appropriate agency make an
investigation of both parties regarding the home conditions, parenting
capabilities, and other matters pertinent to the best interests of the child
or children in a dispute concerning custody of the child or children. The
investigation report completed by the appropriate agency shall be
submitted to the court and available to both parties. The investigation
report completed by the appropriate agency shall be a part of the record
unless otherwise ordered by the court.
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