Opinion
No. 5-570 / 04-2069
Filed October 26, 2005
Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, District Associate Judge.
Mary Nobis appeals, challenging certain economic provisions of the decree dissolving her ten-year marriage to Kevin Nobis. AFFIRMED AS MODIFIED.
Brian G. Sayer of Dunakey Klatt, P.C., Waterloo, for appellant.
Brandon Adams of Adams Law Office, Waterloo, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Mary Nobis appeals, challenging certain economic provisions of the decree dissolving her ten-year marriage to Kevin Nobis. She contends (1) the district court did not correctly calculate Kevin's child support obligation, (2) Kevin should have been required to pay expenses for the children to attend parochial school, (3) the district court did not equitably allocate the parties' assets and debts, and (4) she should have been awarded trial attorney fees. She asks for attorney fees on appeal. We affirm as modified.
Our review is de novo. Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Hardy, 539 N.W.2d 729, 730 (Iowa Ct.App. 1995). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
The parties have three children. Kevin was ordered to pay Mary child support. She contends that the district court in fixing child support did not properly calculate their respective incomes. Kevin did not file a brief addressing this issue or the other issues raised by Mary on appeal.
Before applying the guidelines, there needs to be a determination of the net monthly income of the custodial and noncustodial parent at the time of the hearing. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (court must determine the parents' current income from most reliable evidence presented).
In a pretrial stipulation it was noted that the parties could not agree on their incomes. Kevin claimed his income was $23,920 and that Mary's income was $28,080. Mary filed child support guideline worksheets contending Kevin's gross annual income was $31,246.80 and hers was $26,208.00. The district court found Kevin's gross monthly income, based on a forty-hour week, to be $2,192.67. The court also found he had some overtime but did not specify how much. The district court found Mary's gross monthly income from Bertch Cabinets, where she has worked for about six years with a regular forty-hour week, to be $2,184. The district court found she had some overtime but did not specify how much. The court then found "based on the net income of the parties, and reasonable deductions the court has allowed" that Kevin's net monthly income was $1,625 and Mary's was $1,373.35. In addition, the court noted Mary had an employee benefit which gave her the option of an all-expense paid cruise or a cash bonus of $1,000 and she chose the cruise. Kevin was ordered to pay $568.75 a month in child support and to keep health insurance on the children as long as it was available through his employment. Kevin was given one personal exemption and Mary was given two personal exemptions for income tax purposes.
While the stipulation contends this is a net monthly income figure, it appears from the record this is the gross annual income Kevin claims is earned by the parties.
Mary contends the district court should have fixed child support based on the two child support guideline worksheets she submitted, which were based on her assessment of each party's income. The only other evidence of wages is the parties' testimony and pay stubs. Kevin testified that he began his employment with his current employer in February 2004. Kevin's most recent pay stub included in the record showed his income from his current employer year-to-date through May of 2004 to be $5,708.58 gross and $4,227.21 net after deductions for taxes. The pay stub showed he had worked nearly nine hours of overtime during that pay period. There is an August 6, 2004 pay stub for Mary showing her gross wages year-to-date to be $16,895 and her net after deductions for taxes and other deductions to be $11,385. There was no overtime shown on the pay stub submitted by Mary. The pay stubs show Kevin made $12.65 an hour and Mary made $12.60 an hour.
Kevin had previously been employed as a police officer. Since February 2004 and at the time of the hearing, he had been employed by Unverfert Manufacturing. Mary seems to argue that Kevin will earn more overtime than she will earn. 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. Brown, 487 N.W.2d at 333. Three of Kevin's pay stubs were in evidence and the overtime he earned was different on each.
Attempting to determine each parties' income is made more difficult by the fact Kevin did not file a worksheet outlining his income and deductions in the district court. Furthermore, there is not evidence in the record to support the income and deductions Mary claims are Kevin's. Additionally, Kevin has elected not to file an appellee's brief and the district court made few findings to show how it arrived at income figures.
We have looked at the pay stubs in an attempt to determine the income of Kevin for purposes of applying the child support guidelines. Kevin testified he went to work for his current employer in February. The last pay stub he presented showed his take home pay, including overtime and after deductions for federal and state income tax, FICA and Medicare contribution, through May 20 was $4,227.
The district court determined Kevin's net monthly income to be $1,625, which is within the range of what his pay stubs and the evidence showed him to have been earning.
In saying this we note, as Mary advances, that Kevin had varying overtime on the three pay stubs. One showed two hours of overtime, a second showed about eight hours, and the third showed nine hours. However, Kevin had been employed at his current job for, at most, four months. The district court said it did not include overtime wages in computing Kevin's income. Kevin's overtime is speculative or uncertain. We cannot say that the monthly income figure the district court used for Kevin is not within an acceptable range. We affirm on this issue.
Mary contends Kevin should pay the children's parochial school expenses. In her brief she does not tell us the amount of the expenses, but from the record we assume the tuition to be about $100 a month. The child support guidelines take into account the reasonable costs of living, including educational expenses, of dependent children and attempt to balance those costs against the legitimate needs and expenses of the payor parent. Considering Kevin's income, we do not find there is any basis for increasing his support level above the guideline amount. In re Marriage of Fite, 485 N.W.2d 662, 665 (Iowa 1992). We affirm on this issue.
Mary contends she should have been awarded a camcorder and memory boxes she put together for the children. She also contends the court should have made a different debt allocation. She contends that Kevin should be responsible for one-half of a joint debt to Covenant Medical Center. She also contends that we should hold Kevin's responsibility for it should not be discharged by his bankruptcy. We agree that Mary should have the camcorder and the memory boxes and that it is fair to hold Kevin responsible for one-half of the Covenant Medical Center debt and we do so. However, Mary has not shown that the issue of whether his responsibility for that debt was discharged in bankruptcy was addressed in the district court and we do not address it here. The balance of the allocation made by the district court is equitable and is affirmed as modified.
Mary contends she should have been awarded trial attorney fees. The district court ordered each party to pay his or her own attorney fees and one-half of the trial court costs. We review for an abuse of discretion. In re Marriage of Van Ryswyk, 492 N.W. 2d 728 (Iowa Ct.App. 1992). We find no abuse of discretion. We award Mary $300 in attorney fees on appeal. Costs on appeal are taxed one-half to each party.