In re the Marriage of Lesline ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1840
Filed August 15, 2018
IN RE THE MARRIAGE OF MICHELLE L. LESLINE
AND JIMMY R. LESLINE
Upon the Petition of
MICHELLE L. LESLINE,
Petitioner-Appellee,
And Concerning
JIMMY R. LESLINE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Jeffrey L.
Poulson, Judge.
A father appeals the custody, child-support, and division-of-assets
determinations of a decree of dissolution. AFFIRMED.
Alice S. Horneber of Horneber Law Firm, PC, Sioux City, for appellant.
Jacquelyn S. Johnson of Law Office of Jacquelyn Johnson, Sioux City, for
appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
2
BOWER, Judge.
Jimmy R. Lesline appeals the district court’s dissolution decree granting
physical care of the children, H.L.L., H.J.L., and A.L.H.L., to Michelle L. Hight
Lesline, with visitation for Jimmy. Jimmy requests the decree be modified to place
the children in his physical care. Jimmy also asks for a modification of the child
support and economic provisions of the decree.
I. Background Facts and Proceedings
Jimmy and Michelle Lesline were married on November 19, 2008. Three
children, H.L.L. (2006), H.J.L. (2008), and A.L.H.L. (2013) were born of the
relationship. During most of the marriage, the parties resided at a house in Sioux
City they rented from Jimmy’s parents. In 2011, the parties separated for a time
but reconciled before the dissolution was final.
Jimmy is employed by Load King in Elk Point, South Dakota, as a
welder/fitter and production laborer. He generally works from 6:00 a.m. to 2:15
p.m., sometimes until 4:30 p.m. He is working to complete his general equivalency
diploma (GED). He continues to live in the marital house in Sioux City, which he
rents from his parents. Jimmy remodeled the house in 2017 after discovering it
had mold causing breathing issues for two of the children. Jimmy’s parents and
sisters’ families live close to Jimmy’s home and help him on a regular basis with
child care.
Michelle works as a pharmacy technician at Wal-Mart in Sioux City. Her
work schedule is 9:00 a.m. to 5:00 p.m. four days a week, 1:00 p.m. to 9:00 p.m.
one day a week, and every fourth weekend. She earned her GED and certification
as a pharmacy technician during the marriage. Early in the relationship, Michelle
3
stayed home with the children, and she was the children’s primary caregiver
throughout the entire relationship. Michelle resides in a home she purchased in
April 2017 in Sioux City a few miles from Jimmy’s home.
Both Jimmy and Michelle have a history of substance abuse. Both parties
are long-time smokers, though Jimmy quit in March 2017. Jimmy quit drinking
alcohol in January 2017. Michelle testified she still smokes but does so outside.
Each has used controlled substances in the past, but no evidence indicates current
use. Testimony indicated Michelle has at least once taken prescription
medications not prescribed to her since the separation. Each party testified to
times the other party was under the influence or using alcohol or controlled
substances while they had care of the children.
Michelle filed a petition to dissolve the marriage on February 3, 2017, and
moved out of the family home in March. The parties agreed to joint legal custody,
and initially co-parented well with joint physical care. But as time passed, their
ability to communicate and get along declined, and by May 15, at a hearing on
temporary matters, both parties requested physical care of the children. The court
awarded Jimmy physical care and control of the children, and set child support
payments at $415 per month from Michelle to Jimmy. The order included a right
of first refusal for care of the children.
During the temporary order, Jimmy’s family assisted with care of the
children in the mornings and during school breaks. Jimmy failed to facilitate the
relationship between Michelle and the children by not responding to messages
from Michelle, changing medical providers for the children and not providing
Michelle notice of appointments, and failing to pass on information from the school
4
regarding the children’s programs and conferences. Once school started, Michelle
asked to care for the children in the morning but did not agree to Jimmy bringing
the children to her home at 5:00 a.m. when Jimmy needed to leave for work.
Rather, she wanted to take control of the children at 7:00 a.m., and Jimmy agreed
she could pick up the children at 8:00 a.m.
Following trial, the district court entered its dissolution decree on
October 16. The decree granted physical care to Michelle and visitation to Jimmy.
The decree set child support payments at $871 per month from Jimmy to Michelle
and split the tax benefits for the children. The court divided the marital assets and
debts, including credit card debts. The court required each party be responsible
for their own attorney fees.
Jimmy appeals the district court ruling and seeks physical care of H.L.L.,
H.J.L., and A.L.H.L. Jimmy also appeals the child-support calculation and debt
allocation provisions of the decree.
II. Standard of Review
We review dissolution of marriage cases do novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We have a duty to examine the
entire record and adjudicate anew the rights on the issues properly presented. In
re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). 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. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992). We will
disturb the district court’s ruling only when there has been a failure to do equity.
McDermott, 827 N.W.2d at 676.
5
III. Merits
A. Physical Care
Jimmy appeals the district court’s decision awarding Michelle “primary
physical care of the children,” claiming the district court erred in not granting him
physical care of the children. He contends that Michelle’s history of substance
abuse, self-focus, and inappropriate behavior are harmful to the children. He also
claims the court erred in not including a right of first refusal provision allowing
Jimmy to care for the children when Michelle is unavailable. This last claim was
not ruled on below, and no motion to enlarge and amend the district court’s decree
was filed. We find the argument regarding right of first refusal to have been waived.
In disputes about physical care, our primary consideration is the best
interests of the children. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa
1999). We consider a number of factors, including who has historically cared for
the children, ability of the parents to communicate and be respectful, the degree
of conflict between the parents, and how much the parents generally agree about
their approach to daily matters. In re Marriage of Berning, 745 N.W.2d 90, 92
(Iowa Ct. App. 2007). Our core objective, in considering the factors, is to place the
children in the environment most likely to bring them to healthy physical, mental,
and social maturity. See In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa
2007).
The court held both parents are suitable custodians. The district court noted
Jimmy did not communicate with Michelle regarding the children when he had
custody, including failing to inform her of appointments and changing daycares and
primary physicians without consulting Michelle, and he was unsupportive of
6
Michelle’s relationship with the children. Additionally, the court found Michelle
more supportive of Jimmy and that her work schedule was better for getting the
children to school.
The court found the temporary order to have been based on allegations of
substance abuse and inappropriate behavior not proved at trial. The court ordered
joint legal custody, with physical care to Michelle. The court scheduled extra
visitation privileges for Jimmy to facilitate his contact with the children. Both parties
were prohibited from smoking, using illegal drugs, or abusing alcohol in the
presence of the children.
We give weight to the factual findings of the district court, especially when
considering the credibility of witnesses. In re Marriage of Gensley, 777 N.W.2d
705, 713 (Iowa Ct. App. 2009). The Iowa Code requires the court to order custody
to “assure the child[ren] the opportunity for the maximum continuing physical and
emotional contact with both parents.” Iowa Code § 598.41(1)(a) (2017). Denial by
a parent of the opportunity to maximize the children’s continuing contact with the
other parent without just cause is a significant factor in the court’s evaluation.
Gensley, 777 N.W.2d at 714. Jimmy has demonstrated he will not aid Michelle in
maximizing her continuing contact with the children. We affirm the district court’s
order awarding Michelle physical care and Jimmy visitation.
B. Child Support and Tax Benefits
Iowa Court Rule 9.14(2) establishes the steps to calculate a parent’s child
support obligation. The purpose of the child support guidelines is to provide for
the child’s best interests after considering each parent’s proportional income.
McDermott, 827 N.W.2d at 684. In order to apply these guidelines, the district
7
court must determine the parents’ current net monthly income. McKee v. Dicus,
785 N.W.2d 733, 739 (Iowa Ct. App. 2010). This determination is made based
upon the most reliable evidence presented. Id. at 740. The court used the
rule 9.27 child support guidelines worksheet to set Jimmy’s child support obligation
to Michelle at $871.16 per month.
Jimmy claims the district court used an incorrect salary for him and should
have included a variance based on his daily commute. Jimmy provided no
documentation establishing his gross yearly income at the lower amount he
claimed.1 The court calculated his annual income based on the hourly rate of pay
information provided by Jimmy, with a schedule of forty hours a week. No overtime
hours were included in the court’s calculations, despite testimony from both Jimmy
and Michelle of his frequent overtime work. Overtime wages are normally
considered part of net monthly income for child support but may not be included if
it is uncertain, speculative, or would require overtime to pay the obligation. In re
Marriage of Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005). Based on
the evidence provided, the court was justified in not including overtime in its
calculation.
In the pretrial stipulation, each parent requested to claim two children on
their taxes as dependents, and allow the other spouse to claim one. The court
found the parties would alternate claiming the children on taxes, claiming two
children one year, and one child the next. Jimmy now claims the court should have
1
Jimmy submitted a tax stub at the time of the temporary hearing and testified about his
hourly wage at trial. Michelle provided pay stubs at trial for use in child support
computation.
8
awarded him the tax benefits for all three children for every year, stating Michelle
would receive little to no tax benefit from claiming any of the children. Jimmy also
requests a clarification of the income tax benefits, with the prospective problem
Michelle might claim additional tax benefits on the children which would prevent
his taking the rightful dependency deduction. This last request would have been
appropriate to make in a motion to enlarge and amend with the district court, and
is not properly before us on appeal.
“The ‘general rule’ is that the parent given primary physical care of the child
is entitled to claim the child as a tax exemption.” In re Marriage of Okland, 699
N.W.2d 260, 269 (Iowa 2005). But the court has the authority to award the tax
exemption as appropriate for an equitable result. Id. If one party has no taxable
income, it may be appropriate to allocate all exemptions to the party with taxable
income. See In re Marriage of Rolek, 555 N.W.2d 675, 679-80 (Iowa 1996). Both
Jimmy and Michelle have taxable income. While Jimmy might benefit more from
the exemption, Michelle would generally be entitled to the tax exemption for all
three children. We find the court’s allocation of the tax exemption to be equitable
and affirm the decree.
C. Economic Provisions
Iowa courts equitably divide marital property at the time of divorce except
inherited property and gifts. In re Marriage of Keener, 728 N.W.2d 188, 193 (Iowa
2007). Marital property includes both the assets and the debts held in the name
of either or both parties. In re Marriage of Hageria, 365 N.W.2d 329, 333 (Iowa Ct.
App. 2005). The court’s division of property from a marriage is guided by the
factors set out in Iowa Code section 598.21(5). McDermott, 827 N.W.2d at 678.
9
Among the statutory factors considered are the length of marriage, premarital
property, contributions of each party to the marriage, age of the parties, emotional
and physical health of the parties, and the earning capacity of each party. See
Iowa Code § 598.21(5). However, any relevant factor may be considered to
achieve the objective of dividing the property in a fair and equitable manner. In re
Marriage of Burgess, 568 N.W.2d 827, 828 (Iowa Ct. App. 1997).
Jimmy claims the court assigned him an inequitable portion of the debt of
the parties. “[T]he allocation of marital debts inheres in the property division.” In
re Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980). “Even though a debt
may have been incurred by a party for family expenses, it is not inequitable to order
that party to be responsible for the entire amount of the debt as long as the overall
property distribution is equitable.” In re Marriage of Sullins, 715 N.W.2d 242, 251
(Iowa 2006).
Significant credit card debt was accrued during the marriage. Jimmy states
Michelle ran up all the credit card bills—that he did not ever use a credit card.
Michelle testified that the items purchased with the credit cards include items for
the children and the family in general. The court found the credit card bills were
incurred during the marriage for family expenses. The court was unable to
determine from the evidence presented whether a loan from Jimmy’s parents used
by Jimmy to pay off a credit card was for family or marital purpose, and so allocated
the loan to Jimmy without an equitable debt allocation to Michelle.
We find the district court’s distribution of assets and debts was equitable
and decline to change the economic provisions of the decree.
10
D. Appellate Attorney Fees.
Jimmy and Michelle each request an award of appellate attorney fees. This
court has broad discretion in awarding appellate attorney fees. Okland, 699
N.W.2d at 270. An award of appellate attorney fees is based upon the needs of
the party seeking the award, the ability of the other party to pay, and the relative
merits of the appeal. Hench v. Mysak, 902 N.W.2d 822, 827 (Iowa Ct. App. 2017).
Having considered those factors, both requests are denied.
AFFIRMED.