No. 5-288 / 04-1069Court of Appeals of Iowa.
Filed August 17, 2005
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.
Jeffrey William Leal appeals the physical care and child support provisions of the decree entered by the district court dissolving his marriage to Makayla Lynn Leal. AFFIRMED IN PART,VACATED IN PART, AND REMANDED.
Stephan Rosman, Council Bluffs, for appellant.
Makayla Leal, Aurora, Colorado, appellee pro se.
Considered by Vogel, P.J., Miller and Hecht, JJ.
MILLER, J.
Jeffrey William Leal appeals the physical care and child support provisions of the decree entered by the district court dissolving his marriage to Makayla Lynn Leal. He contends the court erred in placing physical care of their two minor children with Makayla and in the calculation of his child support obligation. We affirm in part, vacate in part, and remand.
Jeffrey and Makayla began cohabitating sometime in 1999 and were subsequently married on April 13, 2001.[1] They have two children together, Derek, born November 3, 1999, and Kenzy, born March 15, 2001.[2] Jeffrey moved out of the family home in May 2003 and Makayla filed a petition for dissolution of marriage on September 3, 2003. Trial on her petition took place May 6, 2004. The record reveals the following facts.
Makayla was thirty-five years old at the time of the dissolution trial and was living in her parents’ home with her parents, two children from a previous marriage, Teylla and Matthew who were fourteen and nine respectively, and Derek and Kenzy. While the parties were together Makayla was not employed outside the home and was the children’s primary caregiver. She continued to be unemployed outside the home at the time of trial but received between $1,000 and $1,100 per month in government benefits and child support for her two older children. She was attending school to be a veterinary technician. Jeffrey was twenty-nine at the time of trial and was working in construction earning $11 per hour when he worked. He also earned approximately $300 per month doing mowing, painting, concrete pouring, and similar work for others. At the time of trial Jeffrey resided with Kristina Rulla and three of Kristina’s six children. Both parties testified that Jeffrey had a drinking problem while they were together. However, Jeffrey testified that as of the time of trial in May 2004 he had not had a drink since March of 2004.
The district court entered a written decree of dissolution on May 19, 2004. The court concluded, in relevant part, that the children’s best interests would be served by granting joint legal custody to the parties, placing physical care with Makayla, and granting Jeffrey liberal visitation. The court also ordered Jeffrey to pay child support in the amount of $460.68 per month based on its finding that Jeffrey earned a net income of $1,535.61 per month.
Jeffrey appeals from the decree entered by the court, contending the court erred in granting physical care to Makayla and in its calculation of the amount of child support he is required to pay.
We conduct a de novo review of physical care awards. In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our primary consideration is the child’s best interests. In re Marriage of Ford, 563 N.W.2d 629, 631 (Iowa 1997). We give weight to, but are not bound by, the district court’s factual findings and credibility assessments. Iowa R. App. P. 6.14(6)(f); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). We review the amount of child support ordered by the district court de novo as well. See In re Marriage of Beecher, 582 N.W.2d 510, 512
(Iowa 1998).
The court found that both parties have “issues that have kept them from being the best possible parents they could be, but both are loving parents who are concerned with Kenzy and Derek’s best interests.” The court determined that the more credible evidence showed Makayla is and has been the children’s primary caretaker throughout their lives. In addition, during the first two months after Jeffrey left the family residence he did not visit with the children often. Thus, the court concluded
The track record established by Makayla shows she is more able to provide for Derek and Kenzy’s day to day physical, social, and emotional needs. Jeffrey has certainly been with the children sufficiently to establish a relationship with them and it will be in the children’s best interest if their relationship is fostered through liberal visitation.
Based on our de novo review of the record we agree with the trial court’s findings and conclusions with regard to the physical care of the children and adopt them as our own. We agree with the court that both parties have issues that have prevented them from being the parents they could and should be, but it is equally clear both parties love their children and would be acceptable parents. However, Makayla has been the children’s primary caretaker for their entire lives. The evidence shows she was their primary caretaker while the parties were together and certainly since they have been apart. In fact, as the court noted, Jeffrey had little contact with the children for the first several months the parties were separated. Accordingly, we affirm the part of the trial court’s decree that places the children’s physical care with Makayla.
Jeffrey claims the district court erred in its calculation of his child support obligation for the parties’ two children. The court found his net income to be $1,536.61 per month. This figure apparently is based on Makayla’s child support guidelines worksheet which suggests that Makayla has net monthly income of $1,082.10 and asserts Jeffrey has gross monthly income of $1,906.67 ($22,880 per year) and net monthly income of $1,535.61 after deductions for only federal and state tax and FICA. The court apparently applied the child support guidelines for two children to these net income figures, resulting in a support obligation of $460.68 per month for Jeffrey.
Jeffrey argues his support obligation should be set at $246 per month. He bases this figure on his child support guidelines worksheet in which he states his gross annual income is $14,040, consisting of $10,040 from his less-than-full-time employment by Marquis Construction and $3,600 of unreported income from miscellaneous work. After deductions, including a deduction of $25 per month for “unreimbursed medical insurance/expenses” and a deduction of $113 per month for a prior court-ordered child support obligation, he arrives at net monthly income of $946.77. He would apply the child support guidelines for two children to net income of $946.77 per month for him and no income for Makayla, calculating a monthly obligation of $351.10 (37.1% of his asserted net monthly income), which he would then reduce by 30% for an asserted 160 court-ordered visitation overnights, resulting in a support obligation of $245.77 per month.
Jeffrey testified he works for Marquis Construction as work is available, about twenty-five to thirty-five hours per week, at $11 per hour, and also earns some $300 per month doing other miscellaneous work. His testimony is to some extent corroborated by Makayla’s testimony that his construction work is somewhat seasonal, with work sometimes not available in the winter; the testimony of his girlfriend, with whom he had lived for about one year, that his work was sporadic; and a “Form 1099-MISC” statement of earnings from his employer, Marquis Construction, showing he received compensation of $10,446 from Marquis for the year 2003.
Jeffrey’s testimony concerning his work hours per week for Marquis Construction would yield gross annual wages from Marquis of $14,300 to $20,020. His claim that his income for child support purposes should be based on gross annual wages from Marquis of $10,440 (plus $3,600 from odd jobs) is thus largely unsupported by and in conflict with his own testimony. We thus reject his claim his support obligation should be $246 per month.
We do, however, agree with Jeffrey that the district court erred in its determination of his gross and net incomes. Makayla’s child support guidelines worksheet and the trial court’s findings concerning Jeffrey’s net income are apparently based on an assumption that he works forty hours per week, fifty-two weeks per year, at $11 per hour (40 x 52 x $11 = $22,880). However, the essentially uncontroverted and unrefuted evidence is that he works some twenty-five to thirty-five hours per week for Marquis at $11 per hour. We therefore find that Jeffrey’s gross annual income for child support purposes should be $20,760 (consisting of $17,160 from Marquis for thirty hours per week, plus $3,600 from various odd jobs).
We conclude that portion of the district court’s decree which establishes Jeffrey’s child support obligation should be vacated and the case remanded to redetermine his child support obligation after, among other things, allowing appropriate deductions from his gross income. We note that among the deductions he claims, and the evidence may support, is a deduction of $113 per month for a prior support obligation for a nine-year-old daughter who lives with the child’s mother in California.
We also again note that in setting Jeffrey’s child support obligation the district court apparently found Makayla’s net income to be $1,082.10. This figure appears to be based on the court’s findings that she is unemployed and has monthly income consisting of VA disability of $145 per month, Supplemental Security Income of $123.10 per month for Matthew, Social Security Disability of $364 per month, and child support of $450 for Teylla and Matthew. The evidence shows that the VA disability and Social Security disability payments are for Teylla and Matthew as a result of their father’s disability. The supplemental security income payments are “public assistance” and thus not “income” for child support purposes. See Iowa Ct. R. 9.5(11) (income does not include public assistance payments); In re Marriage of Benson, 495 N.W.2d 777, 781 (Iowa Ct.App. 1992) (supplemental security payments are “public assistance” payments under our child support guidelines). Further, the entire $1,082.10 per month is all in one manner or another legally for the support of Makayla’s children from a prior marriage, Teylla and Matthew. We conclude it therefore should not be considered as income available for support of the parties’ children, Derek and Kenzy, and thus should not be considered as income to Makayla in establishing Jeffrey’s support obligation for the parties’ children.
The visitation schedule set forth by the district court in its decree provides Jeffrey with about eighty-seven visitation overnights per year. We conclude he is not entitled to any “extraordinary visitation” credit to the guidelines amount of child support.
We vacate that portion of the district court’s decree which establishes Jeffrey’s child support obligation and remand to the district court to redetermine his child support obligation consistent with the views expressed in this opinion. We otherwise affirm the court’s decree. Costs on appeal are taxed one-fourth to Makayla and three-fourths to Jeffrey.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.