In Re the Marriage of Jacqueline Busch Van Meter and Clarke Jennings Van Meter Upon the Petition of Jacqueline Busch Van Meter, and Concerning Clarke Jennings Van Meter ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0049
Filed December 21, 2016
IN RE THE MARRIAGE OF JACQUELINE BUSCH VAN METER
AND CLARKE JENNINGS VAN METER
Upon the Petition of
JACQUELINE BUSCH VAN METER,
Petitioner-Appellee,
And Concerning
CLARKE JENNINGS VAN METER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Delaware County, Todd A. Geer
(modification order) and Thomas A. Bitter (child-support order), Judges.
Clarke Van Meter appeals certain economic provisions of the orders
modifying the decree dissolving his marriage to Jacqueline Busch Van Meter.
AFFIRMED AS MODIFIED.
Mark A. Roeder of Roeder Law Office, Manchester, for appellant.
Cory R. Thein of Pioneer Law Office, Dubuque, for appellee.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
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MULLINS, Judge.
Clarke Van Meter and Jacqueline Busch Van Meter were divorced in June
2007. Pursuant to the dissolution decree, Jacqueline was awarded physical care
of the parties’ child. In April 2014, Clarke sought to modify the decree of
dissolution. In September 2015, the district court entered its order modifying the
decree, granting the parties joint physical care of their child. Clarke then filed a
motion to amend or enlarge the district court’s modification order pursuant to
Iowa Rule of Civil Procedure 1.904(2), which the district court granted in part and
denied in part. The district court subsequently entered an order setting child
support, which was modified following Clarke’s filing of additional rule 1.904(2)
motions. Clarke now challenges three economic provisions resulting from these
orders: (1) the district court’s award of the dependent tax exemption to
Jacqueline; (2) the district court’s failure to include Jacqueline’s residential rental
income when calculating her child-support obligation, and (3) the district court’s
equal division of uncovered medical expenses between the parties.
Because an action to modify a dissolution decree is heard in equity, our
review is de novo. See Iowa R. App. P. 6.907; In re Marriage of Sisson, 843
N.W.2d 866, 870 (Iowa 2014). We give weight to the factual findings of the
district court, especially with regard to witness credibility, but we are not bound
by them. See Iowa R. App. P. 6.904(3)(g); In re Marriage of McDermott, 827
N.W.2d 671, 676 (Iowa 2013). Case precedent has little value and we must base
our decision on the particular circumstances of the case before us. See
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).
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Clarke first claims the tax exemption for the minor child should be rotated
between the parties every other year. 1 Clarke claims the tax exemption would
provide greater benefit to him—who makes approximately $60,000 a year—than
it would to Jacqueline—to whom he attributes a gross annual income of
$230,071, approximately $90,000 over the $140,000 imputed by the district court.
We note Jacqueline was awarded the dependency tax exemption in the original
divorce decree. The burden rests with Clarke, as the party seeking modification,
to show a change in circumstances justifying a modification of the tax exemption
award. See In re Marriage of Okland, 699 N.W.2d 260, 269 (Iowa 2005). Here,
the parties now have joint physical care of the child, with Jacqueline paying child
support to Clarke as a result of the modification and her significantly higher
income. On our de novo review, we find no inequity in the court’s election not to
modify its award of the dependent tax exemption to Jacqueline.
Clarke next claims the district court erred in declining to include
Jacqueline’s rental income when calculating her child-support obligation. Clarke
contends he proved at trial Jacqueline earns $70,800 in annual rent and
Jacqueline failed to produce evidence regarding deductible expenses from these
income properties. In its order, the district court stated it had considered Clarke’s
evidence as to Jacqueline’s rental income and found “the evidence presented as
to [Jacqueline’s] rental income is insufficient for the court to make a
determination as to the amount of net rental income, if any, [Jacqueline] receives
from her properties.” In so finding, the court noted Jacqueline had recently
1
Jacqueline claims error was not preserved on this issue. We note the modification
order explicitly maintains the right to the tax exemption with Jacqueline “provided she is
current in her child support obligation.” We find error was preserved.
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acquired the properties and “credibly testified that she has expended significant
sums on the properties to make them habitable. [Jacqueline] also testified that
she continues to expend funds on those properties.” Thus, contrary to Clarke’s
assertion, Jacqueline provided evidence in the form of her testimony which the
district court found credible. We defer to that finding of credibility and affirm on
this issue.
Finally, Clarke alleges the district court erred in making the parties equally
responsible for all uncovered medical expenses for the child. Jacqueline
counters the division is equitable because she provides health insurance for the
minor child. Iowa Court Rule 9.12(5): “In cases of joint physical care, the parents
shall share all uncovered medical expenses in proportion to their respective net
incomes.” The district court found Clarke has an annual income of $60,000 and
Jacqueline has an annual income of $140,000. The court apparently relied on
the child support guidelines worksheet filed on December 28, 2015, that showed
Jacqueline’s net monthly income at $7868.34, Clarke’s at $3616.58, proportional
shares of income as 68.5% and 31.5%, and, as finally ordered by the district
court, net monthly child support of $405.73. Using these amounts, we determine
the modification order should be and is hereby modified to provide Jacqueline
shall pay 68.5% of all uncovered medical expenses and Clarke shall pay the
remaining 31.5%. See, e.g., In re Marriage of Petersen, No. 15-0282, 2016 WL
1757628, at *4 (Iowa Ct. App. Apr. 27, 2016) (reapportioning the uncovered
medical expenses from the mother paying two-thirds to the father paying two-
thirds based upon the parties’ respective incomes despite the father providing
health insurance for the children).
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Both parties request an award of their appellate attorney fees. “Appellate
attorney fees are not a matter of right, but rather rest in this court’s discretion.”
Okland, 699 N.W.2d at 270. In determining whether to award 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.” Id. Having considered these
factors, we determine the parties shall bear their own appellate attorney fees.
AFFIRMED AS MODIFIED.