Opinion
No. 5-670 / 05-0216
Filed November 9, 2005
Appeal from the Iowa District Court for Muscatine County, David H. Sivright, Jr., Judge.
Johnathan Ahlf appeals the custody, child support, alimony, and attorney fee provisions of a dissolution decree. AFFIRMED.
Dennis Bjorklund of Bjorkland Law Firm, L.L.C., Coralville, attorney for appellant.
Robert DeKock of DeKock Law Firm, P.C., Muscatine, attorney for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
John Ahlf appeals the custody, child support, alimony, and attorney fee provisions of a dissolution decree. We affirm.
I. Background Facts and Proceedings
John and Lisa married in 1993 and had two children. At the time of trial, John was thirty-three years old and Lisa was thirty-two.
John is a high-school graduate. He attended a community college for three years but did not obtain a degree. His employment history is varied. He worked at Hy-Vee for several years, in positions ranging from night stocker to assistant shift manager. He also worked as a home loan officer and an insurance agent. In 2002, John became self-employed. He operated a franchise that reviewed tax returns for small businesses. In 2003, he began another similar business. At the time of trial, John was contracting with several companies and received a salary from one. During the marriage, his annual gross income fluctuated from $30,000 to $92,000.
Lisa graduated from high school and also attended a community college without receiving a degree. During the marriage, she worked as a sales clerk, at a childcare center, and in a nursery. She also performed part-time clerical work for John's businesses. At the time of trial, she worked through a temporary employment agency and also cleaned a local dental office. Her annual income was approximately $23,296. She planned to attend a community college to finish certain fundamental course work and was on the waiting list to enter a dental hygienist program. Before and after the parties' separation, she was the children's primary caregiver.
After ten years of marriage, Lisa sought a divorce. Following trial, the district court awarded Lisa sole legal custody and physical care of the children. The court based this decision on John's history of psychologically and physically abusing Lisa. The court also ordered John to pay child support of $1,144 per month and awarded Lisa rehabilitative alimony of $400 per month for sixty months. Finally, the court ordered John to pay $2,500 towards Lisa's attorney fees and costs.
John appealed these aspects of the court's ruling. Our review is de novo. Iowa R. App. P. 6.4.
II. Legal Custody and Physical Care
If the court finds that a party has a history of domestically abusing a spouse, a rebuttable presumption arises against ordering joint custody. Iowa Code § 598.41(1)(b) (2003). An un-rebutted finding of a history of domestic abuse outweighs any other factor of Iowa Code section 598.41(3) in the determination of custody. Iowa Code § 598.41(2)(c) (2003).
The district court made the following findings:
John's temper and mood swings became apparent early in the marriage. Disagreements escalated to the point where he would angrily punch a hole in a door or a wall, or throw something at [Lisa]. The parties separated on three or four occasions following John's outbursts and threats of violence. Early in the marriage, one argument prompted neighbors to call the police. On this occasion, John tried to choke Lisa. While living in Ottumwa, during an argument he threw a tool at her, hitting her face and causing a cut near her eye. The resultant bruising is shown in the photograph admitted as Petitioner's Exhibit 3. Lisa credibly states John often becomes frustrated and "takes it out on me." During an argument in Muscatine in 2001, he repeatedly slammed a door during an argument. John also has pushed Lisa onto a bed during an angry outburst, prompting the children to cry. Ashley comforted her younger sister after witnessing this incident. On a trip to a shopping mall, John's anger caused him to drive recklessly, prompting Ashley to become scared and tearful. Lisa left with the children in June 2003, after John threw a mustard container against the wall, "got in her face," and then threw a laundry basket at her. She was afraid of John, but did not elect to seek a domestic abuse protective order. The evidence shows a recurrent pattern of verbal abuse, thrown objects, and profane name-calling by John, at times in front of the children. The fact that John minimizes his history of abusive behavior by claiming to have never "laid a hand" on Lisa is disingenuous. It is clear the parties do not communicate well, creating a problematic situation if shared physical care of the children is ordered.
John contends these findings are misplaced as, in his view, "he never crossed the line to being abusive." The record does not support his contention. There is ample evidence of a history of domestic abuse, only a portion of which the district court summarized in the decree. We find it unnecessary to detail that evidence.
John is also faced with an adverse credibility determination, as the district court found "Lisa's descriptions of the parties' numerous conflicts more credible." We give weight to this finding. In re Marriage of Anliker, 694 N.W.2d 535, 539 (Iowa 2005).
John's fallback position is that Lisa failed to cite any of the examples of domestic abuse contained in the dissolution statute. See Iowa Code § 598.41(3)(j) (2003). However, by the terms of the statute, these examples are not exclusive.
Iowa Code § 598.41(3)(j) states:
[C]onsideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 236.8, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A."
(Emphasis added).
The district court's finding that John has a history of committing domestic abuse is supported by the record. This finding, in turn, supports the district court's denial of joint custody and joint physical care.
III. Child Support
John next takes issue with the district court's calculation of child support and, specifically, the court's determination of his income for child support purposes. He contends the court should have used his "current annual salary" of $36,000 rather than a figure of $62,000. We are not persuaded by this argument.
The district court noted that John's gross income ranged from $60,000 to $92,000 "in recent years." The court also noted that "[i]n 2003, his gross income from his . . . salary and other sources totaled $62,000." This figure is taken directly from John's testimony of his income for the entire 2003 year. In contrast, John's estimate of his 2004 salary is based on a single pay stub for a one-month period. While John also cites an Internal Revenue Service letter to support his position, the letter pertains to his income on his 2002 tax return and addresses adjusted gross income rather than gross income.
As of trial in mid-August 2004, John had yet to file a tax return for 2003.
We conclude the district court acted equitably in adopting John's estimate of his income in 2003, the year immediately preceding trial. Accordingly, we affirm the child support award. IV. Rehabilitative Alimony
John also asserts the district court deviated from the child support guidelines and was required to make a specific finding on why the guidelines would produce an unjust result. We see no indication that the court deviated from the guidelines.
The district court ordered John to pay Lisa rehabilitative alimony of $400 per month for sixty months. The court reasoned:
These parties have been married approximately ten years, and both are in their early thirties. Both enjoy good health and they have comparable educations. These factors mitigate against an award of alimony. However, considering the specific factors listed in Iowa Code § 598.21(3), an award of rehabilitative alimony is appropriate here. Under the circumstances of this case, Lisa should receive limited assistance toward her goal of self-sufficiency. She has a realistic need for such assistance during the period of her education and training as a dental hygienist, and John has the ability to pay such support.
John takes issue with this award, contending Lisa is self-supporting. See Anliker, 694 N.W.2d at 540 (noting rehabilitative alimony is "a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce"). We believe the district court acted equitably in concluding otherwise.
Lisa's employment history was primarily as an unskilled worker. She expressed a desire to improve her financial circumstances by studying to become a dental hygienist. She planned to complete her prerequisites for the program by the fall of 2007 and graduate by 2009. As noted, her annual income was $23,296. John's was almost three times this amount.
Based on this evidence, we agree with the district court that Lisa was entitled to rehabilitative alimony and we further conclude the amount awarded was equitable. See Anliker, 694 N.W.2d at 540 (giving district court "considerable latitude in making [the alimony] determination based on the criteria in section 598.21(3)").
V. Attorney Fees
The district court ordered John to pay $2,500 in attorney fees to Lisa and to pay the costs of the action. John argues that he is unable to pay this sum.
"[A]n award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion." In re Marriage of Francis, 442 N.W.2d 59, 67 (Iowa 1989). We find no abuse of discretion, in light of the discrepancy in the parties' incomes and the merits of the appeal.
John also requests that this court award him appellate attorney fees. We deny this request. John has not prevailed on appeal and is financially capable of paying his own fees.
Lisa asks for appellate attorney fees. As she prevailed and John is financially capable of making a payment toward her fees, we order him to pay her $1,000.