In Re the Marriage of Close

478 N.W.2d 852, 1991 Iowa App. LEXIS 529, 1991 WL 273228
CourtCourt of Appeals of Iowa
DecidedOctober 29, 1991
Docket90-1212
StatusPublished
Cited by10 cases

This text of 478 N.W.2d 852 (In Re the Marriage of Close) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Close, 478 N.W.2d 852, 1991 Iowa App. LEXIS 529, 1991 WL 273228 (iowactapp 1991).

Opinions

DONIELSON, Judge.

James and Mary were married on February 20, 1965. On July 16, 1990, the district court dissolved their marriage and divided their debts and assets. Their twenty-five-year marriage produced one child who was age sixteen at trial. The primary physical care of the child was given to Mary, and the court ordered James to pay child support in the amount of $304 per month.

Both James and Mary are high school graduates. James resides with his girlfriend and her four children. For seventeen years, he has worked as an hourly employee for L & W Quarry and he now earns $8.95 per hour. He is paid for overtime, after working more than forty hours per week, at $13.43 per hour. In 1989 James worked a substantial amount of overtime, and as a result, his gross income for the year was $31,813. Had he worked forty hours a week, his gross income would only have been $18,616. James testified that his job entails inspecting materials and purchasing certified rock for the state. He stated that he probably could not keep his present position without working overtime. However, he believed he could have another job with the same employer were he to curtail his overtime.

Mary continues to live in the family home. She has not been employed and contends that her health prevents her from working. The district court disagreed with Mary’s explanation of her unemployment and noted she had both the responsibility and the physical ability to provide for her own support.

The court ordered James to pay alimony to Mary for one year. Under the award, James is to pay $75 per month for the first six months and $45 per month for another [854]*854six months. Additionally, the court ordered James to maintain Mary on his health insurance for three years. Finally, the court ordered James to contribute $500 towards Mary’s attorney fees.

Mary appeals challenging the child support, alimony, and property distribution provisions of the decree. She also requests an award of attorney fees on appeal.

I. Scope of Review. In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). 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. 14(f)(7). We recognize that “factual disputes which depend heavily on the credibility of witnesses are best resolved by the trial court which has a better opportunity to evaluate credibility than we do.” Maisel v. Gelhause, 416 N.W.2d 81, 86 (Iowa App.1987).

II. Child Support. Mary insists that James’s support obligations should be based on his actual earnings which include overtime pay. The district court based James’s support obligations on the income he earned in a standard forty-hour work week. Mary also argues that the trial court should have considered James’s girlfriend’s income in determining James’s child support obligation.

A. Overtime Pay. It is well established that parents have a legal obligation to support their children. In re Marriage of Fleener, 247 N.W.2d 219, 221 (Iowa 1976). That obligation should be apportioned according to the ability of each parent to contribute. In re Marriage of Bornstein, 359 N.W.2d 500, 504 (Iowa App.1984). The Iowa Supreme Court has promulgated guidelines for determining a parent’s support obligation, and the guidelines are to be strictly followed unless their application would lead to an unjust or inappropriate result. See Iowa Code § 598.-21(4)(a) (1991).

To determine monthly child support payments, the Child Support Guidelines direct the court to multiply the noncustodial parent’s “net monthly income” by a particular percentage. The term “net monthly in- ' come” is defined under the guidelines as “gross monthly income” less seven specified deductions. While the term “monthly income,” whether net or gross, is not specifically defined to include or exclude overtime pay, we assume, but do not decide, that overtime pay falls within the definition.

The trial court found that James’s overtime pay varied greatly. James acknowledged in his testimony that his overtime work required long days which consisted of “getting up, eating, going to work, coming home, going to bed, getting up.” On this record, we find that factoring James’s overtime pay into his monthly income for the purpose of determining his support obligations is unjust and inappropriate as determined under the criteria established by the supreme court.

Those criteria are as follows:

(1) Substantial injustice would result to the payor, payee, or child;
(2) Adjustments are necessary to provide for the needs of the child and to do justice between the parties, payor, or payee under the special circumstances of the case; and
(3) Circumstances contemplated in Iowa Code section 234.39 [cost of services provided by the Iowa department of human services].

See In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991).

In In re Marriage of Heinemann, we held that the amount of a parent’s child support obligation should be determined with reference to the amount of income the parent can actually expect to earn. 309 N.W.2d 151, 152 (Iowa App.1981). We stated income that is entirely speculative in nature, and over which one has little control, must not be factored into a parent’s support obligation. Id. We also stated our belief that a parent’s child support obligation should not be so burdensome that the parent is required to work overtime to satisfy it. Id. at 153.

[855]*855The dissent asserts that James’s actual earnings, including overtime pay, should be considered in applying the child support guidelines. For this proposition, the dissent cites In re Marriage of Lalone, 469 N.W.2d 689 (Iowa 1991). The court in Lal-one found the noncustodial parent’s income should include compensation he received in the form of annual bonuses. Id. at 696. The court did not address the issue of overtime pay.

The two issues present entirely different concerns. In addressing the issue of bonuses, the court in Lalone expressed its concern with possible fluctuations in the parent’s bonuses. Id. The inclusion of overtime pay in the calculation of a parent’s net income also raises this general concern. However, overtime pay presents an additional concern not raised by the inclusion of bonus pay.

While bonus pay may be indirectly related to the number of hours an employee devotes to his or her job, overtime pay is directly

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In Re the Marriage of Close
478 N.W.2d 852 (Court of Appeals of Iowa, 1991)

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478 N.W.2d 852, 1991 Iowa App. LEXIS 529, 1991 WL 273228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-close-iowactapp-1991.