DEREK J. HOYLE, Plaintiff-Appellant, vs. KELLIE LEMON, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-351 / 08-1897
Filed July 2, 2009
DEREK J. HOYLE,
Plaintiff-Appellant,
vs.
KELLIE LEMON,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Crawford County, Edward A.
Jacobson, Judge.
Plaintiff appeals from a district court order awarding physical care and
setting support for a minor child. AFFIRMED IN PART AND REMANDED.
Julie A. Schumacher of Mundt, Franck & Schumacher, Denison, for
appellant.
Maura Sailer of Reimer, Lohman & Reitz, Denison, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, J.
Derek Hoyle appeals from a district court order setting custody, visitation,
support, and the tax dependency exemption relating to the parties‟ minor child.
We affirm in part and remand for determination of child support.
I. Background Facts and Proceedings.
Derek Hoyle and Kellie Lemon are the parents of James Lemon, born in
March 2007.
On June 15, 2007, Derek filed a petition to establish custody,
visitation, child support, and the tax dependency exemption.
On August 21,
2007, the district court entered a ruling on temporary matters awarding Kellie
temporary physical care, subject to visitation by Derek as ordered; ordering
Derek to pay $350 per month in support; and ordering Derek to pay “$400 in
temporary attorney fees.”
Hearing on Derek‟s petition was held on September 24, 2008.
The
following facts are supported by the hearing record. Derek and Kellie live within
seven blocks of each other in Denison, Iowa. They were never married and were
no longer seeing each other at the time of James‟s birth.
Derek, age thirty-one, has been married twice before and has a child with
each former spouse: Timmy, age eight, lives in North Carolina and visits with
Derek for one week in the summer and for a few days over the winter recess;
and Gracie, age five, who lives about fifty miles away and stays with Derek every
other weekend and six weeks in the summer. Derek pays $453 per month for
Timmy‟s support and $425 per month for Gracie‟s support. He is in arrears on
these child support obligations.
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At the time of the hearing, Derek was living with his girlfriend, Tabby, in
her home. Tabby has two children from her former marriage, ages eight and
three, who live with Tabby and Derek every other day and every other weekend.
Derek asked that he be awarded joint physical care of James — every other day
and every other weekend — which would coincide with the time Tabby‟s children
were present in the home. Tabby testified Derek has good parenting skills and
that her children love him.
Derek attended “a few” prenatal appointments with Kellie. Derek did go to
the hospital to see James the day he was born, but his name was not placed on
the birth certificate. He did not contribute to James‟s medical expenses or to
James‟s care financially before filing this petition. At the hearing Derek admitted
that he had not paid the ordered temporary support or attorney fees. He also
admitted that Kellie had allowed visitation beyond that ordered by the court.
Derek works at Farmland Foods as a livestock handler guaranteed forty
hours per week at a rate of thirteen dollars per hour. He testified that he had also
worked overtime and that his gross income could exceed the $27,000 per year
he had estimated to calculate child support based on overtime. He testified he
previously worked at Farner-Bocken located in Carroll, Iowa, averaging fifty
hours per week at a rate of $15.59 per hour. He voluntarily changed employment
to cut down on travel time and expenses and to receive better insurance benefits.
He reported gross annual income of $35,739 on his 2007 tax returns.
Derek testified that he had been convicted of harassment arising from
several text messages he sent to an ex-wife and fifth-degree criminal mischief in
relation to a smashed windshield. He does not allow his children to be in contact
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with his two brothers, both of whom have sexually assaulted a minor. Derek
testified he was raised by his step-father and only allowed his children to visit his
biological mother if he was present.
Kellie, age twenty-eight, has a nine-year-old daughter, Kassie, from a
previous relationship. Kellie testified that Tabby had provided day care services
for Kassie before James‟s birth. Kellie receives $452 per month in child support
from Kassie‟s father. Kellie is purchasing her home and Kassie and James each
have their own room. Kellie testified that Kassie and James were very close and
that shared care would not be in James‟s best interests.
Kellie has an associate arts degree and is enrolled in Buena Vista
University working on her degree in human services and psychology. She has
taken courses in child welfare and is certified in CPR and first aid. She works as
a family advocate for Head Start West Central Community Action forty hours per
week at a rate of $8.23 per hour.
She claims a gross annual income of
$21,381.60.
Kellie admitted that she had worked as a stripper for about two weeks
during the time she was seeing Derek and that with the money she earned she
paid bills and purchased a ring for Derek.
She also testified that she had
modeled topless and noted that Derek had accompanied her on that photo shoot.
The district court entered its order to establish custody, visitation, child
support, and the tax dependency exemption. The court wrote in part:
Although [Kellie] has not lived a perfect life, she believes that joint
physical care is not in the best interest of the child and based upon
its observation of Derek and his testimony, the court cannot help
but agree.
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In saying that, the court does not doubt that Derek loves all
three of his children, that he enjoys spending time with them and
that he provides adequate care for them when he is with them. The
court‟s bigger concern is that Derek seems to want to be a father at
his convenience . . . and if he happens to have the money he
provides support and nurturing for his children. Kellie, on the other
hand, is a parent who appears to be there for her two children
everyday.
The court thus found it to be in James‟s best interests that Kellie be awarded
physical care subject to reasonable visitation by Derek. The court set a visitation
schedule, which it noted was “a minimum.”
Derek‟s child support worksheets calculated his child support obligation at
$185 per month, based on $27,040 annual income for him and $17,118.40 for
Kellie, with deductions for prior child support orders and medical insurance
premiums.
Kellie‟s child support worksheets calculated Derek‟s obligation at
$332.99 per month based on Derek‟s 2007 income of $35,739, annual income of
$21,381 for herself, deductions for prior court-ordered child support, two
deductions for additional qualified dependents for herself and for Derek, and no
deduction for medical insurance premiums.
The court ordered Derek to pay
$300 per month without indicating which income figures were utilized and what
deductions were granted. The court ordered the tax dependency exemption to
alternate between the parties. Derek was ordered to pay court costs and $1250
toward Kellie‟s attorney fees.
Derek appeals. He contends the court erred in not awarding joint physical
care, or in the alternative, expanded visitation. He also asserts the court erred in
deviating from the child support guidelines and in ordering him to pay Kellie‟s
attorney‟s fees.
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II. Standard of Review.
This action for custody and visitation was filed in equity1 and, therefore,
our review is de novo. Iowa R. App. P. 6.4. “In equity cases, especially when
considering the credibility of witnesses, the court gives weight to the fact findings
of the district court, but is not bound by them.” Iowa R. App. P. 6.14(6)(g). Our
governing consideration is the best interests of the child.
Iowa R. App. P.
6.14(6)(o); Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995).
III. Physical Care.
In child custody cases where the parents have never married, our legal
analysis is the same as child custody cases in dissolution of marriage
proceedings. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). We consider
the factors listed in Iowa Code section 598.41(3) (2007)2 and In re Marriage of
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2
Iowa Code § 600B.40 (2007) provides:
The mother of a child born out of wedlock whose paternity has not
been acknowledged and who has not been adopted has sole custody of
the child unless the court orders otherwise. If a judgment of paternity is
entered, the father may petition for rights of visitation or custody in the
same paternity action or in an equity proceeding separate from any action
to establish paternity.
In determining the visitation or custody
arrangements of a child born out of wedlock, if a judgment of paternity is
entered and the mother of the child has not been awarded sole custody,
section 598.41 shall apply to the determination, as applicable, and the
court shall consider the factors specified in section 598.41, subsection 3,
including but not limited to the factor related to a parent‟s history of
domestic abuse.
Section 598.41(3) provides in part:
3. In considering what custody arrangement under subsection 2 is in
the best interest of the minor child, the court shall consider the following
factors:
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.
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Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). Id. Our objective is to place the
child in the environment most likely to bring the child to healthy physical, mental,
and social maturity. Phillips, 541 N.W.2d at 847.
Joint physical care is a viable option when it is in the child‟s best interests.
Iowa Code § 598.41(5)(a); In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa
2007). In considering whether joint physical care is in the best interests of the
child, we consider the following factors: (1) approximation, which reflects the
historical care-giving arrangement for the child; (2) the ability of the parents to
communicate and show mutual respect; (3) the degree of conflict between the
parents; and (4) the extent to which the parties agree on matters of routine, daily
care.
In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007); In re
Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).
“Generally, we give considerable deference to the district court‟s credibility
determinations because the court has a firsthand opportunity to hear the
evidence and view the witnesses.” Berning, 745 N.W.2d at 92. The district
court, which had the opportunity to view the parties, came to the conclusion that
joint physical care was not in James‟s best interests. Kellie has been James‟s
primary care-giver and provides consistent parenting and a stable home. On our
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.
f. Whether the custody arrangement is in accord with the child‟s
wishes or whether the child has strong opposition, taking into
consideration the child‟s age and maturity.
g. Whether one or both the parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
....
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de novo review of the record, we affirm the district court‟s decision placing James
in Kellie‟s physical care.
We also affirm the visitation awarded, noting as did the district court that
the visitation outline is a “minimum.” Testimony indicated that Kellie provided
Derek with visitation beyond that ordered by the temporary visitation schedule.
We assume Kellie will continue to agree to additional visitation at Derek‟s
reasonable request and we encourage her to do so.
IV. Child Support.
Child support is to be calculated according to the uniform child support
guidelines. See Iowa Code § 598.21B. Iowa Court Rule 9.4 states that the court
“should determine the amount of support specified by guidelines.”
determined under the guidelines is presumed to be correct.
§ 598.21B(2)(c); Iowa Ct. R. 9.4.
Support
Iowa Code
The district court did not determine child
support for James according to the guidelines. Kellie acknowledges that the
district court deviated from the child support guidelines, but contends the trial
court‟s ruling is defensible assuming certain findings as to income and
deductions.
We decline the invitation to defend the court‟s child support award. The
parties‟ child support worksheets contain contradictory information (for example,
differing amounts for the parties‟ incomes and dependency deductions and
Derek‟s worksheet lists a deduction for health insurance premium that is in
excess of the amount to which he testified) and we believe this matter must be
remanded to the district court for further fact-finding and a calculation of child
support under the guidelines. See In re Marriage of McKenzie, 709 N.W.2d 528,
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533 (Iowa 2006) (stating “our courts are required to use the child support
guidelines to determine a parent‟s child support obligation”).
However, the
presumption that the child support resulting from the application of the guidelines
is a just and appropriate amount is rebuttable.
“If a strict application of the
guidelines would be unjust or inappropriate, a court may adjust the guideline
support amount upward or downward if such adjustment is „necessary to provide
for the needs of the children and to do justice between the parties under the
special circumstances of the case.‟” Id. (quoting Iowa Ct. R. 9.4); see also Iowa
Code § 598.21B(2)(d) (“A variation from the guidelines shall not be considered by
a court without a record or written finding, based on stated reasons, that the
guidelines would be unjust or inappropriate as determined under the criteria
prescribed by the supreme court.”).
V. Attorney’s Fees.
A. Trial fees.
Derek contends the trial court erred in awarding Kellie
attorney fees. Iowa trial courts have considerable discretion in awarding attorney
fees.
In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct. App. 1983).
“Whether attorney fees should be awarded depends on the respective abilities of
the parties to pay.” In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).
To overturn an award the complaining party must show that the trial court abused
its discretion.
In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).
Because Derek was making more money than Kellie at the time of trial, we
cannot say the district court abused its discretion. We affirm on this issue.
B. Appellate fees.
Kellie also seeks an award of attorney‟s fees on
appeal. We consider the needs of the party making the request, the ability of the
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other party to pay, and the relative merits of the appeal.
Id. In light of the
remand and each party‟s financial situation, we deny the request.
Costs of this appeal are assessed one-half to each party.
AFFIRMED IN PART AND REMANDED.
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