No. 4-439 / 03-1057.Court of Appeals of Iowa.
July 28, 2004.
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs, Judge.
Dawn Keegan appeals from the trial court’s decision denying the modification of the child support provision of her dissolution decree. AFFIRMED.
Eric Tindal of Nidey Peterson Erdahl Tindal, Williamsburg, for appellant.
Karla Wolff, Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
HUITINK, J.
I. Background Facts Proceedings
Dawn Keegan and Verlyn Isaac dissolved their marriage on October 28, 1997. The parties are the parents of two minor children.
In their original dissolution decree, the court adopted the parties’ stipulation whereby Dawn and Verlyn agreed to joint custody of their two minor children, with Dawn serving as the physical care provider. The parties determined that Verlyn would receive reasonable and liberal visitation rights, and in the event that they were unable to agree on what was reasonable, the stipulation entitled Verlyn to have the children every other weekend from Friday until Sunday, every Wednesday overnight until Thursday, vacations provided he gave Dawn thirty days written notice, alternate holidays, special family events, and Father’s Day. Based on Verlyn’s net monthly income of $1654.50, he was to pay $500 per month in child support.
On November 24, 1999, Dawn filed an application for modification of the decree. She asserted a change in circumstances necessitated a modification of the custody, child support, and visitation provisions of the decree. The court found:
1. Modification. There has been a substantial and material change since the entry of the Decree of Dissolution of Marriage such that the Decree should be modified. The Iowa Child support guidelines shall be applied. Child support is established in the amount of $591.00 per month as and for child support effective on the same schedule previously established with payment to be made in two equal payments each month corresponding with Verlyn’s pay schedule.
. . . .
2. Visitation: The original schedule is supplemented as follows. Weekends will commence on Friday afternoon at 4:30 p.m. and end on Sunday afternoon at 7:00 p.m. Verlyn or his spouse shall pick the children up on Friday evening and Dawn shall pick them up on Sunday evening.
3. Wednesday overnight visits shall begin at 4:30 p.m. and end at the commencement of school on Thursday morning. Verlyn or his designee shall provide transportation for the visits.
4. Verlyn shall have each Father’s Day from 4:30 p.m. on the Saturday preceding Father’s Day and ending at 7:00 p.m. on Father’s Day. This visitation shall supercede any other visitation. Dawn shall have the same terms and times for the Mother’s Day holiday.
. . . .
6. The following holidays shall be alternated. In calendar years that are even, Verlyn shall have the following holidays: New Years Day, Memorial Day, Labor Day, and Christmas Eve. (Memorial Day and Labor Day shall include the weekends attached to them.) Christmas Eve shall begin at 9:00 a.m. on Christmas Eve Day and end at 9:00 a.m. on Christmas Day.
7. In years that are odd-numbered, Verlyn shall have Easter weekend including Good Friday, Fourth of July including the weekend of the Fourth of July if it includes a weekend day or weekend adjacent to the Fourth of July, Thanksgiving from the Wednesday before Thanksgiving until the Sunday evening following Thanksgiving, and Christmas Day from 9:00 a.m. until 9:00 a.m. on December 26, and New Years Day eve.
On December 4, 2001, Verlyn filed an application to modify the visitation provisions of the decree. Verlyn subsequently filed an amended petition requesting a modification of the custody, child support, and visitation provisions. Dawn requested a modification of Verlyn’s child support obligation due to his increased earnings and her decreased earnings since the modification on February 26, 2001. The parties eventually agreed to terms of custody; however, the child support and visitation issues remained.
On January 10, 2003, the court modified the visitation schedule but denied Dawn’s request to modify the child support obligation. The court held in part:
Pursuant to the parties’ annual incomes, the Court finds the net monthly income for Dawn to be $1,457.42. The net monthly income for Verlyn is $2,522.64. According to the Iowa Supreme Court guidelines, Verlyn should then pay 31.3 percent of his net monthly income for the support of his children, or an amount of $789.59. However, pursuant to the guidelines and the decree, which awards him 132 overnights a year, he qualifies for the visitation adjustment percentage of 25%. The resulting child support amount, after adjustment is $592.19. That is not a substantial change warranting modification.
. . . .
1. Dawn shall have the children every year from 9:00 a.m. on December 21st through 9:00 a.m. December 25th and that Verlyn shall have the children every year from 9:00 a.m. on December 25th through 7:00 p.m. December 28th. The above Christmas holiday visitation schedule shall take priority over regular weekend or vacation scheduling.
2. PumpkinFest shall be considered a holiday in the alternating-holiday scheduling. Dawn shall have the children for PumpkinFest in 2003 and Verlyn shall have the children for PumpkinFest 2004. There after the parties will alternate the right to have the children on that holiday.
3. The parties shall share the school spring break equally-each party should have the children for half of the break period. If Easter is either at the beginning of the school break or during the weekend following the school break, the parent who has Easter, according to the holiday schedule, shall take the children for the half of the school break that includes Easter. If the school break does not include Easter-either at the beginning or at the end of the school holiday, the parents shall alternate taking either the first half of the school vacation or the last half of the school break with reference to whom had the first half/who had the last half last year and so on.
Thereafter, Dawn filed an Iowa Rule of Civil Procedure 1.904(2) motion asking the court to eliminate Verlyn’s twenty-five-percent child support credit, restore the order of visitation priority to (1) holidays, (2) vacation, (3) visitation, and grant her four weeks of vacation visitation with the children. The court denied her motion in its entirety. Dawn appeals this decision.
On appeal Dawn raises the following issue:
I. THE TRIAL COURT ERRED BY GRANTING THE RESPONDENT A 25 PERCENT REDUCTION IN CHILD SUPPORT FOR EXTRAORDINARY VISITATION.
II. Standard of Review
Our scope of review in this equity action 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).
III. Merits
According to the child support guidelines, a noncustodial parent receives a twenty-five-percent credit to the guidelines amount if the children spend between 128 to 147 days in court-ordered visitation with the noncustodial parent each year. Iowa Ct. R. 9.7(2). The adjustment recognizes the increased expense to the noncustodial parent for exercising extraordinary visitation. In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa 2002) (citation omitted). For the purpose of the credit, “days” means overnights spent caring for the children. Iowa Ct. R. 9.7(2).
Dawn argues the court erred in granting Verlyn the twenty-five-percent child support credit because Verlyn double-counted a number of “days” in his testimony. She asserts the actual number of overnight visitations with Verlyn falls below the requisite 128 days necessary for the credit. However, Dawn does not dispute that Verlyn should be given credit for four weeks vacation when determining the total number of “days.”
At trial, Verlyn testified that he receives a minimum of 132 overnights with the children pursuant to the decree. He said,
I get them every Wednesday overnight, which is 52 weeks, then I get them every other weekend, which is two nights times 26, which is 52, and then I get four weeks of vacation a year, so seven times four is 28 and 104 plus 28 is 132.
The court accepted this testimony and granted Verlyn the credit. Although Verlyn’s computation contains some overlapping days, our review of the record and current court-ordered visitation schedule leads us to agree with the trial court’s decision to grant a twenty-five percent credit. The number of days that Verlyn is responsible for the overnight care of his children falls between the 128 to 147 range necessary to qualify for the twenty-five-percent reduction under rule 9.7(2). Therefore, the trial court’s decision denying Dawn’s request to modify the child support provision is affirmed.
IV. Attorney Fees
Verlyn requests that he be awarded costs and attorney fees for this appeal. An award of attorney fees is not a matter of right, but rests within the court’s discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party, the ability of the other party to pay, and whether the requesting party was defending the trial court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct.App. 1981). We determine each party should pay his or her own attorney fees. Costs of this appeal are assessed one-half to each party.
AFFIRMED.