In Re the Marriage of Jason David Albrecht and Amanda Jane Albrecht Upon the Petition of Jason David Albrecht, and Concerning Amanda Jane Albrecht ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1660
Filed June 25, 2014
IN RE THE MARRIAGE OF JASON DAVID ALBRECHT
AND AMANDA JANE ALBRECHT
Upon the Petition of
JASON DAVID ALBRECHT,
Petitioner-Appellee,
And Concerning
AMANDA JANE ALBRECHT,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, David F.
Staudt, Judge.
Amanda Albrecht appeals the district court’s denial of her application to
modify the dissolution decree and the award of child support to Jason Albrecht.
AFFIRMED.
Craig Ament of Ament Law Firm, Waterloo, for appellant.
John J. Wood and Kate B. Mitchell of Beecher, Field, Walker, Morris,
Hoffman & Johnson, P.C., Waterloo, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.
Amanda Albrecht appeals the district court’s denial of her application to
modify the dissolution decree and the award of child support to Jason Albrecht.
Amanda contends the district court improperly employed the offset method to
determine how much child support Amanda was ordered to pay Jason because,
Amanda asserts, they do not have a joint physical care arrangement; rather,
Amanda has primary physical care of the child. Amanda further argues that, due
to her inability to find a job and home close to the child’s school, the district court
should have allowed the modification of the decree so the child can attend the
Dunkerton School District where Amanda resides. Jason requests appellate
attorney fees. We conclude the court properly found no material change in
circumstances occurred warranting modification of the dissolution decree for the
child to attend a different school. We further agree with the court’s conclusion
the parties have a joint care arrangement, and therefore it properly calculated
child support using the offset method. We also award Jason $2000 in appellate
attorney fees. Consequently, we affirm.
I. Factual and Procedural Background
Amanda and Jason were married November 1998, and on February 1,
2010, the marriage was dissolved. One minor female child was adopted during
their marriage, born in 2004. Incorporated in the decree was the parties’
stipulation. The relevant sections state:
Joint Custody, Primary Care, and Visitation. The parties
agree that they should both have joint legal custody and joint
physical placement of the minor child.
....
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Visitation Schedule. The parties have agreed as to
reasonable visitation, said visitation shall be, at a minimum as
follows:
1) During School Year Visitations: The Respondent shall
have visitations with the parties’ minor child each week beginning
each Sunday at 5:00 p.m. to after school on Thursday. In the event
that the minor child shall not have school or have an early dismissal
that occurs on the Respondent’s Thursday visitation, the
Respondent shall have visitation with the minor child until 5:00 p.m.
The Petitioner shall have visitations with the parties’ minor child
agreed as to reasonable visitation, each week from after school
each Thursday through 5:00 p.m. on Sunday.
2) Summer Visitations: The Respondent shall have
visitations with the parties’ minor child each week beginning each
Sunday at 5:00 p.m. through 5:00 p.m. on Thursday. The Petitioner
shall have visitations with the parties’ minor child each week from
5:00 p.m. on Thursday through 5:00 p.m. on Sunday.
3) Holiday Visitations: The Petitioner shall have visitations
with the parties’ minor child on each Easter from 3:00 p.m. to 9:00
p.m.; Labor Day Weekend from Thursday at 5:00 p.m. to the
following Monday at 5:00 p.m.; Thanksgiving Day from 3:00 p.m.,
and Christmas Eve from 4:00 p.m. through Christmas Day at 10:00
a.m. The Respondent shall return the minor child to the Petitioner
by 4:30 p.m. on Christmas Day through 11:00 a.m. on December
26th, unless said day is the Petitioner’s regular scheduled visitation
day. At which time, the regular visitation schedule shall apply. The
Respondent shall have visitations with the parties’ minor child on
each Easter from 10:00 a.m. to 3:00 p.m.; Memorial Weekend from
Friday at 5:00 p.m. to the following Thursday at 5:00 p.m.
Christmas day at 10:00 a.m. to 4:30 p.m. The 4th of July, New
Year’s Eve and New Year’s Day shall be spent with the party in
which the regular visitation falls on.
....
7) Any childcare expenses incurred during scheduled
visitations shall be the sole responsibility of the individual parties.
....
Child Support. The parties are each either employed or
employable and can contribute to the support of the minor child. In
consideration of the settlement, the parties agree that neither party
shall pay child support to the other, now or in the future.
Education and Education Expenses.
a. The parties agree that the minor child shall continue her
education with Sacred Heart, in Oelwein, Iowa through 6th grade.
The minor child shall then continue her education with Oelwein
Community Schools from the 7th grade through 12th grade. The
Petitioner and Respondent agree to share equally any costs
incurred on behalf of the minor child’s education.
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....
The parties agree that each parent must live within a twenty
(20) mile radius of where the minor child is currently enrolled in
school. If a parent is relocating the residence of the minor child to a
location which is more than twenty (20) miles from where the minor
child is enrolled in school, the Court may consider the relocation a
substantial change in circumstances. If the Court determines that
the relocation is a substantial change in circumstances, the Court
shall modify the Dissolution Decree to, at a minimum, preserve, as
nearly as possible, the existing relationship between the minor child
and her parents. The parties recognize the importance of
maximizing contact between the minor child and her parents and
maintaining the shared physical placement agreement for the
benefit of the minor child.
The physical care arrangement results in the child being in Amanda’s care
approximately fifty-seven percent of the time and in Jason’s care forty-three
percent of the time.
At the time of the dissolution, Amanda was unemployed, and in November
2010, began receiving public assistance. As a result of Amanda receiving this
assistance, the district court modified the child support obligation on November
30, 2010. It ordered Jason to pay $170 each month to the Collection Services
Center and Amanda to pay $170 to the Buchanan County Clerk.
Amanda obtained a bachelor’s degree in psychology from Kaplan
University in June 2011. She was unable to find financially sufficient employment
in the Oelwein, Iowa area, and secured a job in April 2012 at the United States
Postal Service in Dunkerton. She works five days each week, with one day off
on Sunday and one during the week, and she earns $38,955 each year. She
purchased a house in Dunkerton, having been unable to find a suitable residence
in the Oelwein area. Jason is a self-employed truck driver, and although his
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income fluctuates, the court found his income to be $18,600.1 He lives in
Hazelton, Iowa.
The child has been enrolled in Sacred Heart Catholic School for the past
four years. The parties agree she is happy and performing well academically.
So that Amanda may arrive at work on time, Amanda and the child currently
leave the house at 6:00 a.m. on the days Amanda is working and taking care of
the child. Due to her work schedule, if the child continues at Sacred Heart, they
will have to leave the house at 5:30 a.m. The drive from Dunkerton to Oelwein is
approximately twenty-five minutes, resulting in Amanda driving two hours each
day she works.
Given her commute, Amanda filed an application to modify the dissolution
decree on August 14, 2012. She requested the court allow her to enroll the child
in the Dunkerton Community School District, as well as establish child support
pursuant to the child support guidelines. A hearing was held on July 16, 2013,
and on August 16, the district court entered an order denying Amanda’s request
to modify the decree, finding no material change in circumstances occurred such
that the decree should be modified to allow the child to change schools. It further
ordered Amanda to pay Jason child support in the amount of $274 each month
after finding the parties had a joint physical care arrangement, and using the
offset method to calculate child support. Amanda appeals.
1
In 2010, Jason’s taxable income was $12,244; in 2011, it was $18,563; and in 2012, it
was $13,673. At trial, Jason testified his lower earnings were a result of time he could
not work due to injury, and that he expects to earn approximately $18,000 in the future.
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II. Standard of Review
We review orders on an application to modify a dissolution decree de
novo. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We
give weight to the fact findings of the trial court but are not bound by them. Id.III. Child Support
Amanda argues the district court improperly concluded the parties share a
joint care arrangement. She contends that, because she has more time with the
child and is responsible for the day-to-day care, that she has primary physical
care. Therefore, Jason should be responsible for paying child support, and the
offset method should not have been employed.2
Pursuant to Iowa Code section 598.1(4) (2013), joint physical care is
defined as:
[A]n award of physical care of a minor child to both joint legal
custodial parents under which both parents have rights and
responsibilities toward the child including but not limited to shared
parenting time with the child, maintaining homes for the child,
providing routine care for the child and under which neither parent
has physical care rights superior to those of the other parent.
Additionally, this arrangement “anticipates that parents will have equal, or roughly
equal, residential time with the child.” In re Marriage of Hynick, 727 N.W.2d 575,
579 (Iowa 2007). By contrast, “the parent with primary physical care has the
responsibility to maintain a residence for the child and has the sole right to make
decisions concerning the child’s routine care.” Id. When the custody
2
Both parties concede that, due to Amanda’s new employment, a substantial change in
circumstances occurred warranting modification of the dissolution decree to include a
child support obligation. See Iowa Code § 598.21C(2)(a) (2013).
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arrangement is joint physical care, the appropriate method for calculating child
support is the offset method. In re Seay, 746 N.W.2d 833, 835 (Iowa 2008).
Here, the custody arrangement stipulated to and incorporated into the
2010 decree does not specifically define itself as “joint physical care” but rather
as “joint physical placement.” However, the stipulation gives both parties
“visitation” under a nearly equal schedule. While Amanda asserts she has the
day-to-day care of the child and Jason is more of a “weekend-dad,” the record
supports the district court’s finding the parties have a near equal amount of time
with the child. While they each partake in different activities with the child, they
both maintain the same rights and responsibilities reflected in their stipulated
“joint physical placement” of the child. Therefore, it is clear the custody
arrangement remains “joint physical care.” See Marriage of Hynick, 727 N.W.2d
at 579–80. Given this custody arrangement, the district court properly used the
offset method when calculating child support. Seay, 746 N.W.2d at 835.
IV. Modification of School Attendance
Amanda further asserts the district court improperly found no material
change in circumstances occurred warranting a modification of the dissolution
decree. She argues her inability to find suitable employment and housing in the
Oelwein area constitutes a change in circumstances not contemplated at the time
of the dissolution decree, and therefore the decree should be modified so as to
allow her to enroll the child in the Dunkerton school, where Amanda now resides.
The parent seeking to modify the visitation provision of a dissolution
decree must establish by a preponderance of the evidence that there has been a
material change in circumstances since the decree and that the requested
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change is in the best interests of the child. In re Marriage of Salmon, 519
N.W.2d 94, 95–96 (Iowa Ct. App. 1994). This burden is much less extensive
than the change that is necessary to modify custody provisions. In re Marriage of
Jerome, 378 N.W.2d 302, 305 (Iowa Ct. App. 1985). Though Amanda requests a
modification to the stipulation agreement regarding school placement rather than
visitation, we believe this standard is nonetheless appropriate in determining
whether the decree should be modified.
At the time of the dissolution decree, Amanda was unemployed and in the
process of trying to find employment. While she anticipated being able to secure
a job in Oelwein, it was not outside the contemplation of the decretal court that
she could potentially be employed in a nearby area, such as Dunkerton.
Moreover, as the district court noted, this job did not prevent her from obtaining
housing in a place other than Dunkerton and closer to the child’s school. We
agree with the district court’s finding the best interests of the child is to remain in
the school to which the parties stipulated and that there was no material change
in circumstances warranting modification of the dissolution decree. Cf. In re
Marriage of Deck, 342 N.W.2d 892, 895–96 (Iowa Ct. App. 1983) (holding a
move from Sioux City to Omaha due to employment constituted a material
change in circumstances warranting modification). We therefore affirm the
district court’s denial of Amanda’s application to modify the stipulation agreement
so as to allow the child to attend a different school.
V. Appellate Attorney Fees
Jason contends we should award him appellate attorney fees. An award
of appellate attorney fees is not a matter of right but rests within our discretion.
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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. Because Amanda earns approximately twice Jason’s
income, and Jason was forced to defend the district court’s decision, we award
Jason $2000 in appellate attorney fees. Amanda’s request for attorney fees is
denied.
Costs of this appeal are assessed to Amanda.
AFFIRMED.