Kevin Ryan Johnston v. Katelyn Elizabeth Perez Van Dam, F/K/A Katelyn Elizabeth Evans ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-2135
Filed November 25, 2015
KEVIN RYAN JOHNSTON,
Petitioner-Appellee,
vs.
KATELYN ELIZABETH PEREZ
VAN DAM, f/k/a KATELYN
ELIZABETH EVANS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Dustria Relph, Judge.
Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of
her petition for modification of a decree of dissolution, and the calculation of child
support. AFFIRMED.
Christina I. Thompson of Phil Watson, P.C., Des Moines, for appellant.
Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of
her petition for modification of a decree of dissolution, and the calculation of child
support. She requests appellate attorney fees. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
Katelyn Perez Van Dam and Kevin Johnston have one child, A.R.J, who
was born in 2009. The parties were never married. In September 2011, the
parties agreed to, and the court approved, joint legal custody and physical care
of the child.
Katelyn filed a petition for modification on July 1, 2014, claiming a
substantial change in circumstances. She requested the court modify the
custody decree and grant her physical care of the child, with reasonable visitation
to Kevin. On August 11, Katelyn requested a hearing on temporary matters as
the parties were disputing where the child should attend kindergarten. Kevin
responded by filing an application to show cause requesting Katelyn be found in
contempt for enrolling the child in a school district not listed in the decree.
On August 26 a hearing was held on the two motions. The court
dismissed the application for rule to show cause at Kevin’s cost. The court
declined to rule on Katelyn’s petition for modification and directed the parties to
obtain a trial date, which was later set for November 10. Kevin then filed a
motion to enforce the custody decree. On October 2, a hearing was held on the
motion. The district court denied the motion finding the issue presented was
previously ruled upon.
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Before the trial on Katelyn’s petition, both parties filed multiple motions.
Katelyn filed a combined motion in limine, objection to petitioner’s witnesses and
exhibits, and motion for sanctions. Katelyn requested sanctions for Kevin’s
failure to produce responses to her discovery requests, his failure to timely
provide a witness and exhibit list, and copies of his proposed exhibits. On
November 9, Kevin filed a motion to dismiss Katelyn’s petition for modification
and enter a declaratory order stating that the child should attend one of the
school districts listed in the decree. He also filed a motion in limine to exclude
“any and all evidence not previously presented to a parenting coordinator,” citing
a paragraph of the decree allowing the appointment of a parenting coordinator to
settle the parties’ disputes.
A trial on all issues was held on November 10. The court found Katelyn
failed to show a substantial change in circumstances to modify the decree. With
the parties’ agreement, and in the child’s best interests, the court modified the
parenting schedule. The court found the West Des Moines school district to be
the most suitable for the child, set Kevin’s child support at $113.06 per month,
and reaffirmed the other provisions of the original decree. Concerning the pre-
trial motions, the court denied Katelyn’s motion in limine, but granted her motion
for sanctions. The court found:
it appropriate to sanction [Kevin] for his well-documented failure to
respond to [Katelyn’s] discovery requests and abide by trial
scheduling orders. [Kevin’s] delays have caused [Katelyn] to incur
significant additional attorney fees. Accordingly, and pursuant to
Iowa Rule of Civil Procedure 1.602(5), [Kevin] is sanctioned in the
amount of $ 1,000.00, which shall be payable to [Katelyn’s] attorney
within 90 days of entry of this order.
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The court denied Kevin’s motion to dismiss and motion in limine.
Katelyn appeals.
II. STANDARD OF REVIEW
We review a district court’s decision on whether to impose sanctions for
an abuse of discretion. Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa
2009). “We find such an abuse when the district court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonable.”
Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464–65 (Iowa 1993).
“‘Unreasonable’ in this context means not based on substantial evidence.” Id.This modification action was tried in equity, and our review is de novo.
Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).
However, we give weight to the trial court’s findings because it was present to
listen to and observe the parties and witnesses. In re Marriage of Zebecki, 389
N.W.2d 396, 398 (Iowa 1986); see also Iowa R. App. P. 6.904(3)(g).
III. DISCUSSION
A. Motion for Sanctions
Katelyn claims the court’s sanction of $1000 was insufficient and an abuse
of discretion. She also claims the court acted improperly by allowing Kevin to
offer exhibits and witnesses when he failed to comply with the trial scheduling
order.
To ensure our district courts have the tools to effectively manage pretrial
and trial conduct, we have recognized the inherent power of the district court to
impose sanctions. Fry v. Blauvelt, 818 N.W.2d 123, 130 (Iowa 2012); see also
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Iowa R. Civ. P. 1.602(5) (stating if a party fails to obey a scheduling or pretrial
order, the court “may make such orders with regard thereto as are just”).
Although district courts have discretion in deciding whether to enforce pretrial
orders, “it is incumbent upon a reviewing court to scrutinize the exercise of that
discretion and to confine the exercise to reasonable limits.” Fox v. Stanley J.
How & Assocs., Inc., 309 N.W.2d 520, 522 (Iowa Ct. App. 1981).
Katelyn claims the district court’s decision to sanction Kevin $1000
violated the language of Iowa Rule of Civil Procedure 1.602(5), which states a
court “shall require the party or the attorney representing that party or both to pay
the reasonable expenses incurred because of any noncompliance with this rule,
including attorney’s fees, unless the court finds that the noncompliance was
substantially justified or that other circumstances make an award of expenses
unjust.” Katelyn notes, due to Kevin’s eleventh hour production of documents,
her attorney had to enlist the help of an additional attorney at a total cost of
$1912.00. Additionally, she complains her attorney incurred $4625 in costs
preparing the weekend before trial.
A trial scheduling order was entered on September 25, 2014, which set
trial for November 10. The order required the parties to designate expert
witnesses and complete discovery thirty days prior to trial, file and exchange
witness and exhibit lists ten days prior to trial, and file and exchange current
financial statements and stipulation of assets and liabilities ten days prior to trial.
The document included a warning that a violation of the order may result in
sanctions, including dismissal or a grant of relief at the request by the opposing
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party. Kevin filed his witness and exhibit list on November 5; he filed an
amended version on November 7 (Friday afternoon before trial). The morning of
November 7, Katelyn filed her combined motion in limine, objection to Kevin’s
witnesses and exhibits, and motion for sanctions. Katelyn requested the court
impose sanctions by disallowing many of Kevin’s exhibits and witnesses.
Katelyn did not request a continuance because “a continuance would essentially
reward the Petitioner for his actions,” and prolong their child’s chaotic education
schedule.
We find the district court’s decision to sanction Kevin (and only Kevin) for
$1000 was reasonable and tenable. The district court reasoned: “The court finds
it appropriate to sanction [Kevin] for his well-documented failure to respond to
[Katelyn’s] discovery requests and abide by trial scheduling orders. [Kevin’s]
delays have caused [Katelyn] to incur significant additional attorney fees.” Given
the considerable amount of discretion granted to the district court to sanction a
party, and the considerable discretion we give the district court on appeal, we
affirm the sanction.
We find the district court did not abuse its discretion by allowing Kevin to
offer his witnesses and exhibits. The purpose behind the disclosure
requirements of the witness and exhibit lists is to assist the parties and the court
in having an orderly trial free of surprises that can cause delay or even
derailment. See Fry, 818 N.W.2d at 129–30. Pre-trial conferences and orders
“contemplate trial, and are designed, not to prevent the presentation of a
controversy to the court, but to expedite and simplify that presentation.” Iowa R.
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Civ. P. 1.602(5) cmt. For this reason, “[e]xclusion of evidence is the most severe
sanction available under the rule, and is justified only when prejudice would
result. Exclusion should not be imposed lightly; other sanctions are available
such as continuation of the trial or limitation of testimony.” Klein v. Chicago Cent.
& Pacific R. Co., 596 N.W.2d 58, 61 (Iowa 1999). The most appropriate
sanction, in this instance, would have been to continue the trial. As this was not
requested, the “severe sanction” of excluding evidence was not warranted. The
court allowed both parties to make statements concerning the untimely filings in
the case. The court found there was nothing offered by Kevin “that should be a
surprise to” Katelyn. We defer to the district court’s finding and decline Katelyn’s
request to disregard the exhibits offered by Kevin.
B. Modification
Katelyn claims she demonstrated a “substantial change in circumstances”
not within the contemplation of the district court when it entered the decree, and
she is the parent best suited to care for the child.
The objective of physical care “is to place the children in the environment
most likely to bring them to health, both physically and mentally, and to social
maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
Changing physical care of children is one of the most significant modifications
that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa
Ct. App. 2000). The parent seeking to modify the physical care provision of a
dissolution decree must prove “there has been a substantial change in
circumstances since the time of the decree not contemplated by the court when
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the decree was entered, which is more or less permanent and relates to the
welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.
App. 2004). In addition, the parent seeking to modify physical care has a “heavy
burden” and “must show the ability to offer superior care.” Id.; see also In re
Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once
custody of the children has been fixed, it should be disturbed only for the most
cogent reasons”). The controlling consideration is the child’s best interest. In re
Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).
Katelyn contends the evidence supporting her modification claim includes:
the fact she has served as the “de facto” primary care giver to the child, the
parties’ inability to communicate, and the negative effect the frequent transitions
between the parents has on the child.
Upon our de novo review of the record, we conclude Katelyn failed to
prove a substantial change in circumstances. While it is clear that some changes
have occurred, those changes were contemplated at the time the decree was
entered, or are insufficient to merit modifying the decree. The district court’s
order provides a good analysis of the situation:
A.J. has been attending two different kindergartens since school
began this year, Madrid on Katelyn’s days and Western Hills on
Kevin’s days. Kevin, Katelyn, and their current spouses all agreed
that attending two different schools has been detrimental to A.J.
Although she is apparently doing well academically at both schools
so far, they testified that the frequent changes are causing A.J.
confusion, anxiety, and frequent need for reassurance and
explanation about her schedule. While the fact that A.J. began
kindergarten could be considered a “change in the educational
needs of the minor child,” it was obviously anticipated that she
would begin school at some point when the decree was entered.
The court agrees that one school needs to be determined for A.J.,
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but does not find that fact that she has reached the age to start
school enough to warrant a change in custody.
Katelyn’s claim that Kevin has had a change in his mental or
emotional health to the point that it would warrant a change in
custody simply is not supported by the evidence. She portrayed
him as controlling, but text messages admitted into evidence show
that they were able to communicate civilly and work out most
issues concerning A.J. Katelyn claimed she felt bullied by Kevin,
but she never sought the assistance of a parenting coordinator to
help her resolve any issues. She presented evidence consisting of
Facebook photos to support her claim that Kevin has a drinking
problem. Kevin testified that the events depicted in the photos
were his bachelor party, a New Year’s Eve party, a wedding party,
and his birthday party. He has never been arrested for any drug or
alcohol related issues, nor was evidence presented that it has been
suggested that he undergo substance abuse or mental health
treatment. There was no meaningful evidence presented to
indicate that Kevin has any concerning mental, emotional, or
substance related issues.
Kevin and Katelyn are both very involved parents. They
both take her to doctor’s appointments and dental appointments.
They both participate in her school activities. Both families are
involved in church and other extracurricular activities with A.J.
They both arrange their own child care for A.J. (the court notes that
the original decree provides that each parent may select their own
daycare provider). A.J. is very fortunate to have two loving and
involved parents and extended families who are obviously
concerned about her long-term well-being.
The court is unable to find that Katelyn is more able to
minister to A.J.’s well-being than Kevin is. If anything, the court has
some concern for Katelyn’s apparent lack of insight into A.J.’s need
for stability in her early years. Besides frequent residential moves,
Katelyn has changed A.J.’s childcare providers at least nine
different times with six different providers in the last three years.
When asked if the frequent changes were negatively impacting her
daughter, Katelyn didn’t think so, since A.J. is with different people
every day. She testified that she thinks A.J. has stability because
she has a roof over her head. And while she said she believes
daycare providers are important people in a child’s development,
she also believes that frequent changes are “not a big deal” for a
child.
We affirm the district court’s denial of Katelyn’s modification petition.
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C. Child Support
Katelyn claims the district court failed to consider Kevin’s overtime hours
in determining his child support obligation. The district court noted: “Kevin’s
annual salary is $41,787.20. Any income over that is due to overtime. Kevin’s
pay stubs . . . show that Kevin does not regularly and routinely work overtime.”
Overtime wages are not excluded as income. In re Marriage of Brown,
487 N.W.2d 331, 333 (Iowa 1992). Overtime wages are within the definition of
gross income to be used in calculating net monthly income for child support
purposes. Id. This conclusion does not necessarily mean, however, that a court
must steadfastly adhere to the appropriate child support amount as determined
by the guidelines using overtime pay if the amount results in injustice between
the parties. Id. In circumstances where overtime pay appears to be an anomaly
or is uncertain or speculative, a deviation from the child support guidelines may
be appropriate. Id.; see also In re Marriage of Close, 478 N.W.2d 852, 854 (Iowa
Ct. App. 1991). Yet a parent’s child support obligation should not be so
burdensome that the parent is required to work overtime to satisfy it. In re
Marriage of Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005).
However, the district court must make a specific finding to that effect. Id.Upon our de novo review of the record, we agree with the district court
Kevin’s overtime wages are “uncertain or speculative,” and it would it would be
unjust to include the overtime wages in the calculation of Kevin’s child support
obligation. We affirm.
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D. Appellate Attorney Fees
Katelyn requests an award of appellate attorney fees. An award of
appellate attorney fees is not a matter of right but rests within our discretion. In
re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). In
determining whether to award appellate attorney fees, we consider the needs of
the party making the request, the ability of the other party to pay, and whether
the party making the request was obligated to defend the decision of the trial
court on appeal. Id. Given the circumstances in this action, we decline to award
Katelyn appellate attorney fees.
IV. CONCLUSION
We find the district court did not abuse its discretion by sanctioning Kevin
$1000. Further, Katelyn has failed to carry her heavy burden in demonstrating a
substantial change in circumstances to merit modifying the original decree. The
district court properly excluded Kevin’s overtime wages in calculating his child
support obligation. Finally, we decline Katelyn’s request for appellate attorney
fees.
AFFIRMED.