In Re the Marriage of Cossel

487 N.W.2d 679, 1992 Iowa App. LEXIS 58, 1992 WL 136483
CourtCourt of Appeals of Iowa
DecidedApril 28, 1992
Docket91-928
StatusPublished
Cited by26 cases

This text of 487 N.W.2d 679 (In Re the Marriage of Cossel) 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 Cossel, 487 N.W.2d 679, 1992 Iowa App. LEXIS 58, 1992 WL 136483 (iowactapp 1992).

Opinions

SACKETT, Judge.

This appeal addresses the issue of fixing the child support obligation of a self-employed Iowa grain and livestock farmer.

Petitioner-appellant Gary Lee Cossel and respondent-appellee and cross-appellant Shari Ann Cossel were married in August of 1988. They have one child, a daughter who was two years old at the time of the hearing on the dissolution petition.

Gary is twenty-eight years old and in good health. He is the father of two older children. The decree dissolving Gary’s first marriage ordered Gary to pay $3,200 a year in child support for two children. He pays only $2,000 1 a year in support. Gary has been self-employed as a grain and livestock farmer for the past ten years.

Shari is twenty years old. This was her first marriage. Shari is employed full-time as a file clerk at the Ottumwa Regional Health Center and earns $5.70 an hour.

The trial court dissolved the marriage, divided the property, granted physical care of their child to Shari, and ordered Gary to pay $300 a month in child support. In ordering child support, the trial court made no finding as to the net monthly income as required by the Iowa Child Support Guidelines for either party and no computation of the amount of child support that would be fixed if the guidelines were applied. Instead, the trial court found the application of the child support guidelines was not realistic and fixed the support at $300 monthly.

Gary appeals, contending the trial court should have computed child support using the guidelines, that under the guidelines his monthly income is $221.88, and that is the figure that should have been used in fixing his child support. We affirm as modified.

I.

The first issue is whether the trial court was correct in summarily deciding the guidelines were not applicable. Shari contends the child support guidelines cannot be applied to a farmer and the trial court was correct in refusing to do so. She also contends if the guidelines are used, the court should use Gary's financial statement, not his income figures, to fix child support. Her position is the child support should be fixed in the amount of $566.83.

The decree of dissolution was entered on April 24, 1991. The child support guidelines are applicable. See In re Marriage of [681]*681Powell, 474 N.W.2d 531, 533 (Iowa 1991) (under child support guidelines, there is rebuttable presumption that amount of child support that would result from application of guidelines is correct); In re Marriage of Ludwig, 478 N.W.2d 416, 419 (Iowa App.1991) (application of child support guidelines is mandatory unless court makes written findings that adjustment is necessary); Iowa Dep’t of Human Serv. v. Gable, 474 N.W.2d 581, 582 (Iowa App.1991) (child support guidelines are to be used in determining child support unless court makes written finding that adjustment is necessary); In re Marriage of Toedter, 473 N.W.2d 233, 235 (Iowa App.1991) (trial court was required to apply child support guidelines in effect at time of dissolution where trial court had made no written findings that they would be unjust or inappropriate); In re Marriage of Rodgers, 470 N.W.2d 43, 45 (Iowa App.1991) (level of child support should have been set in accordance with guidelines, absent any indication that guidelines were inappropriate or unjust).

The question whether the facts in this record support a finding the guidelines would be unjust or inappropriate is determined under the following criteria:

Gross monthly income does not include public assistance payments.
The court shall not vary from the amount of child support which would result from application of the guidelines without a written finding that the guidelines would be unjust or inappropriate as determined under the following criteria:
(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.

Gary, like a number of Iowans, is a self-employed farmer whose income always fluctuates substantially from month to month and frequently fluctuates substantially from year to year. Shari contends that because of the nature of a farming operation the current child support guidelines cannot be applied to an Iowa farmer.

Shari contends the guidelines cannot apply because a farmer has the ability to allocate income to different years through the sale of grain in different calendar years.

To establish a monthly income for a self-employed person or one who has fluctuating monthly income, it generally is best to use an average of income from a period that accurately reflects the fluctuations in income. A farmer produces commodities that fluctuate in value. Production may vary because of weather conditions. Farm programs have a substantial impact on a farmer’s net income. These factors generally require a farmer’s net monthly income be determined from an average of twenty-four to thirty-six months’ income. The fact that a noncustodial parent is a farmer does not justify departure from the guidelines. There is no basis to not apply guidelines to self-employed persons and to apply guidelines to persons employed by others.

II.

The next question is, what is Gary’s net monthly income as defined by the guidelines? Before applying the guidelines there needs to be a determination of the net monthly income of the custodial and noncustodial parent. See Powell, 474 N.W.2d at 533 (court must determine the parents’ current income from most reliable evidence presented); In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991) (application of child support guidelines chart first involves determination of net monthly income of each parent); Miller, 475 N.W.2d at 678 (first step in using the child support guidelines is to arrive at “net monthly income”).

There is a serious disagreement between the parties as to Gary’s net monthly income. This is one of a series of cases that have come before the Iowa appellate courts seeking further definition of “net monthly income” as used in the guidelines. See In re Marriage of Gaer, 476 N.W.2d 324, 326-30 (Iowa 1991) (in determining income [682]*682available for child support, self-employed truck driver would be allowed deduction for straight-line method of depreciation of truck); Powell, 474 N.W.2d at 533-34 (court may determine current monthly income based upon income prior to temporary unemployment); Lalone, 469 N.W.2d at 697 (“net monthly income” excluded alimony paid); State ex rel. Dept. Human Serv. v. Burt,

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Bluebook (online)
487 N.W.2d 679, 1992 Iowa App. LEXIS 58, 1992 WL 136483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cossel-iowactapp-1992.