Opinion
No. 4-619 / 04-0519
Filed February 9, 2005
Appeal from the Iowa District Court for Madison County, Gary G. Kimes, Judge.
Joseph Carney appeals various economic provisions of the order establishing his paternity of a child with Kristy Markey. AFFIRMED AS MODIFIED.
Patrick H. Payton of Payton Assocs., P.C., Des Moines, for appellant.
Frank Steinbach of McEnroe, McCarthy Gotsdiner, P.C., West Des Moines, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Joseph Carney appeals various economic provisions of the order establishing his paternity of a child born to Kristy Markey. We affirm as modified.
Background Facts and Proceedings.
Just prior to Kristy Markey's and Scott Cox's dissolution of marriage, Kristy became pregnant by Joseph Carney. Dylan Cox was born on February 12, 1997. Joseph, who had been told of the pregnancy, had no relationship with Dylan and provided no support to Kristy for him.
On November 14, 2002, Kristy filed a Petition to Establish Paternity and Child Support, in which she sought to establish Joseph's paternity and require him to pay child support. Joseph answered and initially denied paternity; however, after a court-ordered paternity test showed a 99.999% likelihood that he was the father of Dylan, Joseph amended his answer to admit paternity and seek custody. He later again amended his answer to withdraw his custody request.
Following a trial on the matter, the district court, among other things, established Joseph as Dylan's father; awarded sole legal and physical custody of Dylan to Kristy; ordered Joseph to pay $425 per month in child support; entered a judgment against Joseph for back child support in a total amount of $21,000; entered a judgment against Joseph for support during the pendency of the action; and ordered that Joseph pay Kristy $2,500 in attorney fees. Joseph appeals this order.
Scope of Review.
Our review of paternity actions is generally for the correction of legal error. Mason v. Hall, 419 N.W.2d 367, 369 (Iowa 1988). However, decisions ancillary to the question of paternity, such as support, are reviewed by this court de novo. Id. In our review, we look to the Iowa Child Support Guidelines, see Schuler v. Rodberg, 516 N.W.2d 902, 903 (Iowa 1994), and to the parties' income as defined by the guidelines. In re Marriage of Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999).
Child Support.
The district court ordered Joseph to pay $425 per month in child support. On appeal, Joseph maintains the record, instead, supports only an award of $364 per month. The record reflects that Joseph earned a salary of $25,000 in 2002 from Aamco, but also earned $4,584 in commissions from the sale of cars at Aamco. Thus, the fighting issue on appeal is whether the court properly included the commissions in calculating Joseph's income for child support purposes. We conclude it did. "Income, for purposes of support guidelines, need not be guaranteed." Seymour v. Hunter, 603 N.W.2d 625, 626 (Iowa 1999). The consideration of this income does not result in an inequity or injustice, as it merely accounts for incomes readily available to Joseph through his regular job and regular work hours.
By including the sales commissions, the district court found Joseph's annual gross income to be $31,216 and Kristy's to be $32,955. Upon our review of the record, it is unclear how the court arrived at those figures. Joseph's Child Support Guidelines Worksheet, from which it appears the court derived the support payment of $425 per month, reflects that Kristy's annual income is $31,200 while Joseph's is $29,584. We believe these figures more accurately reflect the respective income of the parties and we modify the district court order to conform to these findings. However, regardless of the court's findings of fact on the parties' income, we also conclude its order of $425 per month in support was, in fact, based on the correct $31,200 and $29,584 figures. We affirm the court's support order.
Uncovered Medical Expenses.
The Child Support Guidelines provide that uncovered medical expenses above a certain amount "shall be paid by the parents in proportion to their respective net incomes." Here, the district court ordered that Kristy pay fifty-one percent of all uncovered medical expenses above $250 and that Joseph pay forty-nine percent. On appeal, Joseph claims these percentages are incorrect.
Referring to the Child Support Guidelines Worksheet which was apparently accepted by the district court in determining child support and which was in fact supplied by Joseph's attorney, it appears that Kristy's net annual income is $22,306 while Joseph's is 22,684. While we acknowledge there may be a slight disparity between these figures and the percentages arrived at by the district court, we nonetheless find equity is best served by affirming this portion of the district court order.
Joseph maintains on appeal that his net annual income is $19,398. However, he does not reference a portion of the record substantiating this figure, nor does he inform the court in his appellate brief how he arrived at this number.
Back Child Support.
The district court entered a judgment for back support against Joseph in the amount of $23,975. This amount includes $21,000 representing the non-payment from Dylan's birth up to the time the petition was filed, and $2,975 representing support due during the pendency of the action. The court further ordered that $100 per month be withheld from his paycheck until paid in full. Joseph contends that, because an award of back support is not mandatory and because of his inability to pay such an amount, this court should delete the back support obligation.
We conclude the district court properly ordered Joseph to pay back child support. Joseph's claims on appeal that (1) Kristy's delay in seeking back support should estop her from seeking such support and (2) any award would be a windfall to her, are both disingenuous and would reflect poor public policy. The record establishes that Joseph was fully aware that Kristy was pregnant with his child, yet he still shirked all parental and financial responsibilities to that child. The Child Support Guidelines Worksheets that Kristy supplied the court, covering all of Joseph's years of non-payment, fully support the court's order.
Also, on appeal Joseph contends the "district court erred in its award of $300 per month rather than $100 per month for back child support." Our review of the district court's order reveals that the court arrived at the $21,000 amount of back child support by awarding Kristy $300 for each month of non-payment. However, regarding the payment terms of that obligation, the district court ordered as follows: "The Respondent shall have all current support withheld and an additional $100 per month shall be withheld to pay on the back child support amounts of $23,975 until paid in full." Thus, while the court computed the actual unpaid obligation at $300 per month, it only ordered him to pay it back at a rate of $100 per month. Considering Joseph's current salary and his years of failing to support his son, we conclude this computation and payment plan is neither unduly burdensome nor oppressive.
Attorney Fees.
The district court ordered Joseph to pay Kristy $2,500 in attorney fees. He now contends this award was improper. Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). Awards of attorney fees must be for fair and reasonable amounts, In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977), and based on the parties' respective abilities to pay. In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa Ct.App. 1982). We conclude the district court did not abuse its discretion in awarding Kristy attorney fees.
We decline Kristy's request for attorney fees on appeal. Costs on appeal to be assessed against Joseph.
AFFIRMED AS MODIFIED.
Zimmer, J., concurs; Sackett, C.L., concurs in part and dissents in part.
I concur in part and dissent in part.
I agree with the majority that Joseph should pay $425 a month child support and that he should pay $2,975 as support from the time the petition was filed until the order fixing support was entered. I disagree with the majority's decision to affirm support of $21,000 to cover the period from Dylan's birth until the petition was filed. The $21,000 represents support in the amount of $300 a month. Joseph says this support should have been no more than $100 a month, or $7,000. I would accept his argument and modify the decree accordingly. To do so is equitable under the circumstances. Joseph's financial situation makes it difficult, if not impossible, to pay current support and past due support. He has another child he is supporting.
Furthermore, Dylan was conceived during Kristy's marriage to Scott Cox. Kristy and Joseph had intercourse once. Scott Cox was the legal father of Dylan and remained Dylan's legal father until Joseph's paternity was established by the court in the order fixing support. Joseph had reason to question his paternity until he took a paternity test after Kristy's petition was filed.