In re the Marriage of Krueger , 919 N.W.2d 767 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1817
Filed June 6, 2018
IN RE THE MARRIAGE OF SCOTT J. KRUEGER
AND ELYSE S. KRUEGER
Upon the Petition of
SCOTT J. KRUEGER,
Petitioner-Appellant/Cross-Appellee,
And Concerning
ELYSE S. KRUEGER,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, James A. McGlynn,
Judge.
The father appeals from the district court’s decree of dissolution of marriage,
which awarded physical care of their children to the mother and visitation time to
him. The mother cross-appeals the calculation of child support. AFFIRMED AS
MODIFIED AND REMANDED.
Judith M. O'Donohoe of Elwood, O'Donohoe, Braun & White, L.L.P.,
Charles City, for appellant.
Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin, L.L.P., Boone,
for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
Scott Krueger appeals from the decree dissolving his marriage to Elyse
Krueger. He argues the district court erred in declining to grant joint physical care
and in establishing the visitation schedule. Elyse requests appellate attorney fees,
and she cross-appeals, claiming the district court erred in calculating child support.
We find the district court’s factual determinations are supported by the record, and
we affirm the physical care award and the visitation schedule. We also find Elyse
is entitled to partial appellate attorney fees, and we agree with her on the child
support calculation. Accordingly, we affirm as modified and remand for further
proceedings.
Scott and Elyse Krueger married in March 2009. The marriage produced
two children. On November 16, 2016, Scott filed the petition for dissolution of
marriage. Trial was held on August 22 and 23, 2017. On October 3, the district
court entered the decree of dissolution, which accepted most of the parties’
stipulations, granted joint legal custody of the children, placed physical custody of
the children with Elyse, established a schedule for visitation with Scott, and
ordered child support.
We review dissolution cases de novo, giving “weight to the trial court’s
factual findings, especially with respect to the credibility of the witnesses.” In re
Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Questions of physical care
are based upon the best interest of the child. In re Marriage of Hansen, 733
N.W.2d 683, 696 (Iowa 2007).
Scott claims the district court should have granted the parties joint physical
care of the children. The statutory factors in Iowa Code section 598.41(3) (2016)
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“as well as other facts and circumstances are relevant in determining whether joint
physical care is in the best interest of the child.” Id. After rejecting joint physical
care as not being in the best interests of the children, the district court granted
physical care to Elyse. It noted the strengths of each party, and it was “convinced
that each parent loves their children and each parent is capable of providing the
necessary nurturing for the children.” The court also noted the weaknesses of
each party. “Scott has demonstrated that he has a temper, that he can be
controlling and that he does not consider Elyse to be a co-equal parenting
authority.” Elyse has “developed some history of being a vindictive parent who is
willing to withhold visitation from the other parent as punishment for
transgressions.” The district court was in the best position to see and hear the
parties first-hand, and to note each party’s attitude, compassion, tone of voice, and
other qualities. See Witten, 672 N.W.2d at 773. After reviewing the entire record,
including the testimony of all witnesses, we are convinced the district court properly
considered all factors in making physical care and visitation decisions in the best
interest of the children. We affirm the decree regarding physical care and visitation
without further opinion. Iowa Ct. R. 21.26(1)(a), (b), (d), (e).
Regarding child support, Elyse argues, and Scott agrees, the district court
improperly deducted Scott’s IPERS contributions when calculating his child
support obligation. See Iowa Ct. R. 9.5(3) (allowing a deduction for “mandatory
pension deductions not to exceed the current Social Security and Medicare tax
rate for employees”). We agree with the parties, and we remand to the district
court for the sole purpose of recalculating child support, using the income figures
already submitted, without the deduction of Scott’s IPERS contributions.
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Finally, Elyse requests appellate attorney fees. Appellate attorney fees are
within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643,
646 (Iowa 1996). “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.” In re Marriage of Hoffman, 891 N.W.2d 849,
852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389
(Iowa Ct. App. 1997)). The district court considered Scott’s significantly higher
income and ordered him to pay $2,500 of her attorney fees. Due to Scott’s greater
income and the fact Elyse mostly prevailed on appeal, we order Scott to pay $2,500
of Elyse’s appellate attorney fees as well.
AFFIRMED AS MODIFIED AND REMANDED.