In Re the Marriage of McKamey

522 N.W.2d 95, 1994 Iowa App. LEXIS 67, 1994 WL 515609
CourtCourt of Appeals of Iowa
DecidedJune 28, 1994
Docket92-1795
StatusPublished
Cited by15 cases

This text of 522 N.W.2d 95 (In Re the Marriage of McKamey) 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 McKamey, 522 N.W.2d 95, 1994 Iowa App. LEXIS 67, 1994 WL 515609 (iowactapp 1994).

Opinion

SACKETT, Judge.

Respondent-appellant Dennis J. McKamey appeals from a decree dissolving his marriage. He contends the property division is not equitable and he was ordered to pay more child support than was contemplated by the child support guidelines. We affirm.

Dennis and petitioner-appellee Susan G. McKamey were married in 1974. At the time of trial, the parties were both thirty-seven years old and had two children, Stacy, bom in 1976, and Brett, born in 1978. Susan works at the community hospital and earns minimum wage for thirty-six hours a week. The hospital, in addition to her salary, pays her health insurance. Dennis is a sole proprietor of a muffler and oil change shop. The trial court valued the assets and liabilities and apportioned them between the parties. Based on the trial court’s values, Susan received net equities of $34,000 and Dennis received net equities of $52,000. Dennis was ordered to pay Susan $8000 to equalize the property division and alimony of $30 a week for four years.

Dennis contends, in apportioning the assets and in fixing his income, the trial court did not do equity. Our review is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses. Iowa R.App.P. 14(f)(7). We are not bound by these determinations, however. Id. We base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

Dennis bought the shop in 1985 with the help of a loan from his mother of $55,000. The business is located in a building owned by the parties and subject to a debt to Dennis’s mother of about $25,000 and a debt to a bank of about $56,000. Dennis valued his business equipment and inventory at about $17,000. He claimed his accounts receivable were $7200 but not all collectable, and James’s accountant testified they should be discounted about ten percent. His balance sheet shows an owner’s equity of $21,000. His tax returns show business earnings for the prior three years of an average of $15,-500. Susan testified cash was taken from the business that was not reported.

The trial court found Dennis’s financial statement not credible and valued the business at $35,000. Dennis contends there was not evidence supporting that value but the only value that should be placed on the business is $24,440.

We find the value placed on the assets by the trial court to be well within the permissible range of evidence and will not disturb them on appeal. See In re Marriage of Bare, 203 N.W.2d 551, 554 (Iowa 1973); In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa App.1984).

Dennis next contends the child support ordered was excessive. Dennis reported an average three-year profit from his business of about $15,000; however, the trial court did not find this figure accurately represented the income Dennis had available for child support purposes.^ The trial court specifically found Dennis pays personal expenses, including transportation and living expenses, and deducts these expenses as business expenses and also Dennis supplements his household income by paying wages of $10,000 a year which he also deducts. These wages were first paid to his wife and now are paid to his girlfriend. The trial court, therefore, found Dennis’s income was $30,000 a year or, at least, he had the ability to generate income of $30,000 a year. Dennis argues the trial court did not give him proper credit for depreciation in arriving at this figure.

The child support guidelines are applicable. See In re Marriage of Powell, 474 N.W.2d 531, 533 (Iowa 1991) (under child support guidelines, there is rebuttable presumption that amount of child support that *98 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 Servs. ex rel. Gonzales 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).

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 guideline chart, first involves determination of net monthly income of each parent); In re Marriage of Miller, 475 N.W.2d 675, 678 (Iowa App.1991) (first step in using the child support guidelines is to arrive at “net monthly income”).

This is one of a series of eases 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 Goer, 476 N.W.2d 324, 326-30 (Iowa 1991) (in determining income available 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 pri- or to temporary unemployment); Lalone, 469 N.W.2d at 697 (“net monthly income” excluded alimony paid); State ex rel. Dep’t Human Serv. v. Burt, 469 N.W.2d 669, 671 (Iowa 1991) (amount father ordered to pay to be applied toward his accrued obligation for public assistance advanced in past is not deductible from gross income in determining net income under child support guidelines); In re Marriage of Mayfield,

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522 N.W.2d 95, 1994 Iowa App. LEXIS 67, 1994 WL 515609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mckamey-iowactapp-1994.