Opinion
No. 3-780 / 03-0045
Filed October 29, 2003
Appeal from the Iowa District Court forFayette County, Margaret L. Lingreen, Judge.
Following remand, Jayme Hurley appeals the district court's determination of child support. AFFIRMED.
Joseph Sevcik of Snow, Knock, Sevicik, Betterton Hinze, Cedar Falls, for appellant.
Gary Boveia of Boveia Law Firm, Waverly, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Following remand, Jayme Hurley appeals the district court's determination of child support. We affirm.
Jayme Hurley and Andrea Kurth are the biological parents of Katelyn, born March 15, 1996. The parents were never married. In June 1999 Andrea filed an action for purposes of establishing Jayme's child support obligation and visitation rights. In September 1999 Jayme filed a separate petition seeking physical placement. Trial commenced on June 6, 2001, and the district court entered a decree on June 11, 2001. Physical care of Katelyn was placed with Jayme, subject to reasonable visitation with Andrea. The court ordered Andrea to pay child support in the amount of $315 per month. Andrea appealed, and this court remanded the case back to the district court to determine her monthly child support obligation. This court stated:
Before using earning capacity rather than actual earnings, a finding must be made by the Court that the use of actual earnings would create a substantial injustice or that adjustments would be necessary to provide for the needs of the child. [In re Marriage of] Bonnette, 492 N.W.2d [717,] 722 [Iowa Ct. App. 1992]; Iowa Dep't of Human Serv. ex. rel Gonzalez v. Gable, 474 N.W.2d 581, 582-83 (Iowa Ct.App. 1991). In this case, the district court made no such findings; therefore, we will rely on Andrea's actual earnings to establish her child support obligation. However, the record contains conflicting evidence concerning Andrea's net monthly income. In addition, the district court made no findings as to Andrea's net income based on her actual earnings. We therefore remand to the district court to determine Andrea's monthly child support obligation consistent with this opinion.
Following a hearing on remand, the district court found Andrea had no income at the time of the original trial and determined her child support obligation to be fifty dollars per month, retroactive to August 15, 2001. Jayme appeals.
Our review in this equitable action is de novo. Iowa R.App.P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Jayme argues the district court incorrectly determined Andrea's child support obligation. The district court found Andrea had no income and, thus, according to the child support guidelines her obligation is fifty dollars per month retroactive to August 15, 2001. We conclude the record supports the district court's finding. At the time of the original trial Andrea was unemployed. She had accepted a layoff from her employment in November 2000 because she was pregnant and wanted to be a stay-at-home mother. The evidence supports the conclusion that Andrea's decision to stay at home was made well in advance of the original trial. Further, we note the record is void of any evidence that shows Andrea's decision was made in an attempt to thwart her child support obligation.
Jayme further argues the district court should have utilized Andrea's earning capacity rather than her actual earnings to determine her child support obligation. However, before using earning capacity rather than actual earnings, a finding must be made by the court that the use of actual earnings would create a substantial injustice or that adjustments would be necessary to provide for the needs of the children and to do justice between the parties. In re Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct.App. 1992). The district court concluded "there is no evidence in the record that substantial injustice would otherwise result to the payor, payee, or child, nor is there evidence that adjustments are necessary to provide for the needs of the child or to do justice between the payor or payee." The court further noted that Jayme reported net monthly living expenses for himself and the child that his own net monthly income was more than adequate to meet. After a de novo review of the record, we agree with the conclusion of the district court. Therefore, we affirm the district court on this issue.
We also find no merit in Jayme's final argument that the district court should have included the money Andrea received from her parents as income for purposes of determining her child support obligation. The money advanced by Andrea's parents was for her attorney fees as evidenced by the checks made directly payable to her counsel and, therefore, does not constitute income.
Accordingly, the decision of the district court is affirmed.