In Re the Marriage of Hopkins

453 N.W.2d 232, 1990 Iowa App. LEXIS 6, 1990 WL 34174
CourtCourt of Appeals of Iowa
DecidedJanuary 25, 1990
Docket89-646
StatusPublished
Cited by1 cases

This text of 453 N.W.2d 232 (In Re the Marriage of Hopkins) 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.

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In Re the Marriage of Hopkins, 453 N.W.2d 232, 1990 Iowa App. LEXIS 6, 1990 WL 34174 (iowactapp 1990).

Opinion

OXBERGER, Chief Judge.

Scott Hopkins appeals from a district court decree of dissolution. Scott contends that the district court erred in: (1) establishing that he was the father of the child born during the marriage; (2) setting excessive child support; (3) awarding unreasonable visitation; and (4) awarding Karen attorney fees. Karen seeks attorney fees for this appeal. We affirm.

Our scope of review is de novo. Iowa R.App.P. 4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the trial court, but is not bound by them. Iowa R.App.P. 14(f)(7).

Scott and Karen Hopkins were married on May 23, 1987, in Arizona while Scott was stationed there in the Army. After Scott was discharged, the parties moved to Iowa in August 1987. On September 27, 1987, Karen left Scott and Iowa and eventually returned to live with her parents, now located in Hawaii. Karen was preg *234 nant at the time she left and on May 4, 1988, Karen gave birth to a daughter. Since the parties’ separation, Karen has worked as a waitress in a Hawaiian restaurant. Scott is currently employed as a security guard.

On October 15, 1987, Scott filed a petition for decree of dissolution. Following trial, a decree of dissolution was entered. Scott has filed this appeal.

First, Scott contends the district court erred in establishing him as the father of the child born during the marriage. He claims Karen failed to carry the burden of proof he is the father of the child. He asserts that the presumption of legitimacy has been defeated by evidence of nonaccess of the parties and Karen’s extramarital relationships with other men.

The Iowa Supreme Court has stated the well-established burden of proof on this issue as follows:

Paternity must be shown by a preponderance of the evidence_ The law, however, presumes the legitimacy of a child born in wedlock. The presumption is rebuttable by clear, strong, and satisfactory evidence_ Although it is theoretically merely an aid to the party with the burden to prove paternity, its practical effect is to place the burden of proving nonpaternity on the putative father. (Citations omitted.)

In re Marriage of Schneckloth, 320 N.W.2d 535, 536 (Iowa 1982).

The record reveals the parties moved to Iowa in August 1987. On September 27, 1987, Karen left Scott and moved in with her parents in Hawaii. Scott asserts he had no access to Karen after their separation. Both Scott and Karen testified that Karen was three months pregnant when she left in September.

The only other evidence offered to prove that Scott was not the father of the child was his testimony that Karen went to the NCO Club with her friends and stayed out late. Scott never found Karen with another man. He further testified that in all likelihood the child was his. Additionally, Karen testified that between her marriage to Scott and the birth of the child, she did not have intercourse with any other man.

The district court concluded that Scott “failed to rebut the presumption that the child born during the course of this marriage is that of the parties, and it is hereby established by competent evidence that the child ... is the child of both these parties.” We agree. Scott has failed to show by clear, strong evidence that the child is illegitimate. We hold Karen has shown by a preponderance of the evidence Scott is the father of the child in question here. Accordingly, we find no error on the part of the district court.

Next, Scott contends the district court erred in awarding excessive child support plus all dental expenses and costs associated with visitation. Scott was required to pay $325 per month child support and maintain health and accident insurance coverage for the child.

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). The obligation to support 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 factors to consider are: the financial resources of the child; the financial resources of both parents; the standard of living the child would have enjoyed had there not been a dissolution; the cost of day care; the physical and emotional health needs of the child; and the child’s educational needs. Iowa Code § 598.21(4).

The Iowa Supreme Court on September 29, 1989, entered an order prescribing uniform child support guidelines pursuant to federal Family Support Act of 1988, Pub.L. No. 100-485. The guidelines state that monthly income means gross income less certain deductions. Scott’s financial affidavit filed February 17, 1989, indicates his gross monthly income is $1,717.00. The affidavit also shows deductions for federal and state taxes, union dues and dental insurance. There is no indication for social security deductions or any other required deductions.

*235 Karen did not file a financial affidavit. She testified that her gross income for 1988 was $4,700. Currently Karen works part time as a waitress making $3.95 an hour. Karen testified that she makes $150 every two weeks after taxes. Additionally, she works an average of 25 hours a week and makes at least a hundred dollars ($100) a week in tips. Karen further testified that, as a waitress, each night she claims eight (8) percent of her total tips for income taxes to be reported through her employer. There is no other specific evidence in the record regarding federal and state taxes or any other required deductions.

Upon our review of the record we find the evidence insufficient to allocate for the required deductions as mandated by our uniform child support guidelines. Consequently, we remand to the district court to receive the necessary evidence from the parties consistent with the uniform child support guidelines and this opinion.

Scott also contends the district court erred in awarding unreasonable visitation. Scott asserts the visitation is unreasonable in three ways: (1) requiring him to pay all costs associated with visitation; (2) requiring him to travel to Hawaii to conduct visitation; and, (3) granting a limited visitation period. We disagree.

Liberal visitation rights are in the best interests of the child. In re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa App.1987). Children of a dissolution have a need to maintain meaningful relationships with both parents. In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa App.1988). We consider each ease individually in determining visitation rights.

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453 N.W.2d 232, 1990 Iowa App. LEXIS 6, 1990 WL 34174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hopkins-iowactapp-1990.