Opinion
No. 2-694 / 01-1924
Filed November 25, 2002
Appeal from the Iowa District Court for Cedar County, NANCY S. TABOR, Judge.
Father appeals physical custody award, and mother cross-appeals as to child support, tax exemptions and attorney fees. AFFIRMED AS MODIFIEID.
Stuart P. Werling, Tipton, for appellant.
James R. Keele, West Liberty, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Upon the dissolution of the marriage of John and Kathy Crow, the district court awarded joint legal custody with physical care of the couple's minor children, Cody and Cheyanne, to Kathy. In making this award the court considered the fact Cody and Cheyanne had always resided with their half siblings, Kayla and Thomas, Kathy's children from a prior relationship(s). John was ordered to pay child support and was awarded the tax deductions for both children. Each party was directed to pay his or her own attorney fees. John appeals the physical care determination, and Kathy cross-appeals, challenging the trial court's calculation of the parties' net incomes, the award to John of both tax deductions, and the attorney fee provision. Upon our de novo review, see Iowa R.App.P. 6.4, we affirm.
John's brief contains two citations to authority. The first is to our de novo standard of review, the second to the general, governing consideration of what is in the best interests of the children. He makes no effort to cite to any authority on the issue of physical care, and on that basis alone we could find he had waived his claim. See Iowa R.App.P. 6.14(1)( c).
We decline to address Kathy's claim that the trial court should have denied the entirety of John's motion made pursuant to Iowa Rule of Civil Procedure 1.904(2), because the motion was not timely filed. This is a bare contention, with no supporting authority. Nor does Kathy forward any authority or argument as to why the district's court's grant of John's requests regarding visitation and its expanded finding as to John's family network, which failed to alter its physical care determination, were in error or relevant to the issues on appeal. We find Kathy has waived this issue. See Iowa R.App.P. 6.14(1)( c).
Issues of physical care are determined by the factors first comprehensively outlined in In re Marriage of Winters, 223 N.W.2d 165, 166-67 (Iowa 1974). Assessing those factors, with due deference to the factual findings and credibility assessments of the district court, see In re Marriage of Clinton, 579 N.W.2d 835, 838 (Iowa Ct.App. 1998), we agree the physical care of the two children should be placed with Kathy.
In its ruling on the parties' motions made pursuant to Iowa Rule of Civil Procedure 1.904(2), the district court specifically denied John's request for a finding that Kathy had been sexually abused, as "a review of the court's notes finds that that [sic] finding is not supported by believable and credible evidence. . . . ." Based on the record, we see no reason to interfere with this ruling. A review of the remaining testimony and evidence fails to demonstrate the best interests of the children would be better served by their placement with John, particularly in light of the preference for maintaining sibling bonds. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (noting principle that siblings in dissolution actions should be separated only for compelling reasons, also applies in the case of half siblings).
Kathy's arguments regarding child support and the tax exemptions are wholly without supporting authority. This is sufficient to waive these arguments on appeal. See Iowa R.App.P. 6.14(1)(c). However, because we find some merit to her income tax exemption argument, we will overlook the deficiencies in her brief. Kathy argues each parent should be entitled to one of the two tax dependency exemptions. We agree the equities dictate such a result and modify the trial court's decree to award one tax exemption to Kathy and one to John. See In re Marriage of Thede, 568 N.W.2d 59, 62 (Iowa Ct.App. 1997) ("in applying the guidelines a fair allocation of deductions should be made between spouses. . . ."). We further modify to provide John is entitled to take one exemption only if he is current in his child support obligation as of December 31 of the year for which the exemption is being claimed. See In re Marriage of Pothast, 539 N.W.2d 199, 203 (Iowa Ct.App. 1995), overruled on other grounds by In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999). If he is not, Kathy will be entitled to take both exemptions for that year.
Because of the alteration to the dependency exemption award, we revisit the issue of child support. It is not entirely clear from the record how the district court arrived at the monthly support amount of $591.11. However, upon our recalculation of the support obligation, allowing for the shift in dependency exemptions, as well as allotting Kathy two qualified additional dependent deductions, we find the difference between the amount we arrive at, and the support figure awarded by the district court, to be negligible. Accordingly, we find the support award was appropriate, and decline to modify it on appeal.
Kathy also seeks trial court and appellate attorney fees. The district court had considerable discretion in awarding attorney fees. In re Marriage of Griffin, 570 N.W.2d 258, 261 (Iowa Ct.App. 1997). Given the financial position of the parties at the time of trial and the scope and extent of their dissolution proceeding, it was not an abuse of the court's discretion to order the parties to pay their own fees. An award of appellate fees is also discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon review we find it appropriate to award Kathy $1,000 in appellate attorney fees. Costs on appeal are assessed to John.