In re the Marriage of Gibson ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0587
Filed February 16, 2022
IN RE THE MARRIAGE OF JOHN GIBSON AND ALEXA GIBSON
Upon the Petition of
JOHN GIBSON,
Petitioner-Appellee,
And Concerning
ALEXA GIBSON,
Respondent-Appellant.
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Appeal from the Iowa District Court for Clarke County, John D. Lloyd and
Elisabeth Reynoldson, Judges.
Alexa Gibson challenges the district court’s temporary child support order.
AFFIRMED.
Karmen Anderson, Des Moines, for appellant.
Katie M. Naset and Adam J. Naset of Hope Law Firm & Associates, P.C.,
West Des Moines, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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BOWER, Chief Judge.
John Gibson and Alexa Gibson are in the process of dissolving their
marriage. They have three children together, ages one, two, and three. The
district court held an unreported hearing on temporary matters. The court awarded
the parents joint legal custody and set out a schedule for each parent’s physical
care of the children. The court calculated each parent’s monthly income, used the
child support guideline for joint physical care, and employed the offset method set
out in Iowa Court Rule 9.14, ruling Alexa was to pay John temporary child support
in the amount of $268.39 per month. The court tasked John with preparing “a
formal order implementing this ruling,” which Alexa’s counsel was to approve as to
form. The order was filed on March 30, 2021, and included the language: “counsel
attests that the Order has been presented to opposing counsel who has consented
to this Order being presented to the Court at any time or place, without hearing or
further notice to the parties or counsel.”
New counsel appeared for Alexa and filed a notice of appeal, asserting the
child support calculation is based upon a shared care arrangement but “the
visitation schedule clearly provided John with extraordinary visitation, but not equal
parenting time.” Alexa asserts the court erred in employing the offset method and
the court made no provision for childcare expenses.
A temporary support order is final and reviewable.1 In re Marriage of Denly,
590 N.W.2d 48, 50 (Iowa 1999). Our review of the interpretation of court rules
1 Alexa recognized she was appealing from a final order but sought “interlocutory
review.” The supreme court observed the appeal was of right and transferred the
matter to this court.
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regarding the award of child support is for errors of law. 2 In re Seay, 746 N.W.2d
833, 834 (Iowa 2008).
Alexa’s brief acknowledges the district court “awarded both parties physical
custody” and used the offset method. As was explained in Seay,
In Iowa, we have adopted a rule which requires application of
the offset method for calculating child support in cases involving joint
physical care. Iowa Ct. R. 9.14. The rule reflects the difference
between joint physical care and other parental arrangements. Under
Iowa Code section 598.1(4) [(2021)], parties awarded joint physical
care have equal responsibility to maintain homes and provide routine
care for the child. No party has superior rights or responsibilities with
respect to the child. In contrast, the legal rights and responsibilities
of a party with only joint legal custody and visitation is more limited.
See Iowa Code § 598.1(3). As a result, ordinarily a parent with joint
physical care directly expends more for the support of a child than a
party awarded joint legal custody and visitation. Application of the
offset method as a starting point in determining child support
recognizes these differences.
Id. at 835.
As in Seay, Alexa argues “equally shared” in rule 9.14 means physical care
of the children is equally divided on a calendar basis. See id. Our supreme court
observed:
Although the text of Iowa Court Rule 9.14 uses the parenthetical
“equally shared,” this phrase is a generalized description of the
responsibilities and decision-making authority of each party. Under
joint physical care, the parties are equally responsible for routine,
daily decisions to be made regarding the child or children regardless
of residential arrangements at the time. While joint physical care
does require equal responsibility on routine, daily decision-making, it
2 John argues the appeal was untimely because it was not filed within thirty days
of the district court’s initial ruling. But the court’s ruling of February 17, 2021,
contemplated that a “formal order” would follow. Alexa’s appeal was timely filed
after the formal order was filed on March 30.
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does not require that the residential arrangements be determined
with mathematical precision.
Id. at 835–36 (citations omitted).
There is a rebuttable presumption that the child-support guidelines
determine the appropriate amount of child support to be awarded. Iowa Ct. R. 9.4.
The guideline amount of child support for parents awarded joint physical care may
be varied only if the district court makes written findings that application of the
guidelines would be unjust or inappropriate according to established criteria. Iowa
Ct. R. 9.11; In re Marriage of Powell, 474 N.W.2d 531, 533 (Iowa 1991). We have
no such finding.
Alexa asserts the guideline amount is unjust because she has the care of
the children from 6:00 p.m. on Sundays through 6:00 p.m. on Thursdays and John
has physical care from 6:00 p.m. Thursdays through 6:00 p.m. on Sundays. She
contends this is not joint physical care; rather, it is shared care with liberal visitation
to John. Seay rejected this same argument.
Alexa also contends the court did not provide for childcare expenses, which
she contends she covers completely.3 The court’s guideline worksheet notes “joint
physical care.” Because of this designation on the child support guidelines
worksheet, there was no “custodial parent” with deductible child care expenses.
The court observed the case was submitted on written affidavits and financial
documents. The court noted the lack of testimony and that “the court is left to
3 We note that Alexa’s financial affidavit notes childcare expenses of $74 and $160
for preschool. The affidavit does not mention if these expenses are weekly or
monthly. Alexa’s written affidavit states the maternal grandparents watch the
children while she works.
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devise a temporary order that is hopefully a precursor to the parties reaching an
agreement that resolves this matter for the long term.” We discern no error
requiring a modification of the temporary support order. We therefore affirm.
John seeks an award of appellate attorney fees. “Appellate attorney fees
are not a matter of right, but rather rest in this court’s discretion.” In re Marriage of
Okland, 699 N.W.2d 260, 270 (Iowa 2005). “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) (citation omitted). After
considering these factors, and mindful that more costs will accrue as this matter
continues, we leave the division of appellate attorney fees for the trial court to
equitably divide in the dissolution when all attorney fees and other issues can be
considered and resolved.
AFFIRMED.