IN THE COURT OF APPEALS OF IOWA
No. 15-0973 Filed February 10, 2016
IN RE THE MARRIAGE OF MISTY DAWN TUCKER AND NICHOLAS DAVID TUCKER
Upon the Petition of MISTY DAWN TUCKER, n/k/a MISTY DAWN STUART, Petitioner-Appellee/Cross-Appellant,
And Concerning NICHOLAS DAVID TUCKER, Respondent-Appellant/Cross-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson,
Judge.
A father appeals the district court’s grant of physical care of the parties’
two children to the mother, and the mother cross-appeals. AFFIRMED ON
APPEAL; MODIFIED ON CROSS-APPEAL.
Diane Crookham-Johnson of Crookham-Johnson Law Office, P.L.L.C.,
Oskaloosa, and Philip J. De Koster of De Koster & De Koster, P.L.L.C., Hull, for
appellant/cross-appellee.
Heidi Young of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown
& Bergmann, L.L.P., Des Moines, for appellee/cross-appellant.
Heard by Tabor, P.J., and Bower and McDonald, JJ. 2
BOWER, Judge.
The May 2015 dissolution decree entered for Nicholas and Misty Tucker 1
provided they would have joint legal custody and Misty would provide the
physical care for their two children. Nicholas appeals and seeks physical care.
Misty cross-appeals and challenges Nicholas’s receipt of (1) both children’s tax
exemptions and (2) a child-support offset based on one child’s supplemental
security income (SSI). Because we agree with the court’s determination the
children’s best interests will be served by continuing physical care with their
historical caregiver, Misty, we affirm the court’s ruling on physical care. On
Misty’s cross-appeal, we modify the court’s ruling so that each parent claims one
child for a dependency tax exemption. We also modify the court’s ruling on child
support by striking the offset to Nicholas’s support obligation.
I. Background Facts and Proceedings
Misty and Nicholas, both in their thirties, started dating in 2002 and were
married in 2005. They are the parents of H.T., age nine and one-half, and K.T.,
age five and one-half. The children have a close sibling relationship. K.T. was
born deaf and underwent cochlear implant surgery on one ear in 2011, age three
years and three months, and on the other ear in 2013, age four years and eight
months. K.T. is able to hear when he wears the cochlear-implant devices (CIs).2
1 Misty is now using her maiden name and is known as Misty Stuart. 2 Nicholas described the CIs: The [outside piece] has the battery, the processor, cable, and the head piece. We’ve had a lot of trouble with the cables when he’s had issues at school, things like that. That’s typically because it’s a regular wire so it gets damaged very easily. And sometimes we’ve had issues with a 3
If K.T. is not wearing the CIs, he cannot hear and uses sign language. Both
Nicholas and Misty can communicate with K.T. using sign language. Nicholas
testified he is able to use sign language to “calm [K.T.] down and give him that
sense of communication with him enough to calm him down.” Misty has three
relatives who are profoundly deaf, and she works with them on developing her
own skills in sign language.
Shortly after K.T.’s first surgery in 2011, Misty took him to see speech
therapist Kim Swartz; those appointments are ongoing. It is undisputed, based
on K.T.’s age when he received the implants, he is developmentally on track. He
currently communicates at approximately a two-year-old level because he has
had access to sound in order to learn and develop speech and language skills for
two years. K.T.’s communication skills are expected to “catch up to” his hearing-
age peers at age nine or ten. K.T. has no I.Q. issues, and professionals opine he
will be successful in a general-education classroom if his communication skills
continue to improve. Nicholas testified the teachers who have worked with K.T.
have all “said he’s a very bright, happy kid.”
For three years, K.T. has attended day care and then preschool at
Eddyville schools. Both parents attend K.T.’s conferences and his annual
individual education plan (IEP) meetings. In the classroom, K.T. has had
frequent and sometimes violent outbursts. About six weeks before the April 2015
couple processors that just weren’t working for some reason, probably got jarred or something from being thrown, and I’ve had trouble with the ear hooks as well because of their design. There’s a weak spot that they’ve been broken several times. 4
dissolution trial, K.T.’s long-term medical care provider placed him on medication
for attention deficit hyperactivity disorder (ADHD). Misty believes the medication
has been decreasing K.T.’s “acting out” behaviors—he is not “throwing and
hitting things now.” Nicholas testified K.T.’s behavior has “gotten better since
he’s been on the medicine” but his behavior is still problematic if his wearing of
the CIs is “inconsistent.” Nicholas does not believe K.T. should be medicated
and is concerned about K.T. being labeled a problem child.
The parties separated, and Misty and the children started living with her
parents in November 2013. When Misty moved out, Nicholas was working in
Cedar Rapids and saw the children about once a week. Misty was frustrated that
Nicholas did not see the children more often on the days he was not working.
From November 2013 to May 2014, Misty took care of the children, and Nicholas
occasionally watched them but provided no financial support to Misty.
In May of 2014, Nicholas took a new job in a new location. He then would
call Misty and tell her the days and nights he would be taking the kids based on
the days he had off from work; again, there was no regular schedule. Nicholas
would pull the children out of daycare on his days off. Misty paid the daycare
bills despite Nicholas’s agreement to pay half.
Nicholas currently lives with his girlfriend, Tanya, and one of Tanya’s three
children in the two-bedroom marital home. Nicholas and Misty had been buying
the house on contract, and the owners forfeited the contract for nonpayment.
Nicholas now pays rent to the same owners and believes there is a possibility he
could again contract to buy the home. 5
Misty and Nicholas both drank during their relationship, and Misty has had
issues with alcohol abuse. At trial Misty stated she had one a drink on January
1, 2015, and prior to that she had a drink on July 26, 2014. When the parties
were together, Misty observed Nicholas being violent when he was drinking.
Nicholas testified his drinking has “gone in spurts” and the heaviest drinking he
has done since the children were born was no more than six beers at night for
“maybe five or six days in a month.”
After Nicolas and Misty separated, on two occasions Nicholas and Tanya
used Tanya’s brother, Tony Jr., as a babysitter, and the children spent the night
at his house. According to Nicholas, both overnights occurred before the family
learned of Tony Jr.’s pending criminal charges for third-degree sexual abuse of a
young, female teenager. At trial, Misty expressed concern about Tony Jr. being
around H.T. The children’s guardian ad litem also expressed concerns in this
regard. Nicholas testified the children have not stayed with Tony Jr. after the
charges and the only post-charge occasion in which H.T. was at Tony Jr.’s house
was when H.T. got her hair done for a dance. On that occasion, Tony Jr. and
Nicholas remained outside the house the whole time.
Misty testified she began abusing prescription medications after she was
sexually assaulted in 2011 and also testified she has been sober from narcotic
abuse since July 2012 (approximately three years before the April 2015 trial).
She regularly attends NA/AA meetings and has a sponsor. Misty smokes
cigarettes in her bedroom at home and in the car. 6
In June and July 2014, Misty’s parents were out of town. Due to her work
schedule, Misty asked Nicholas for more help with the children. During those
months, the children were with Nicholas more than half the time. Also in July
2014, Misty and the children moved to a separate residence in which the children
have their own bedrooms.
Misty filed for dissolution in August 2014. After the parties attended
mediation, a stipulated order on temporary matters was filed in October 2014.
Under the temporary order, the parties shared legal and physical custody, and no
child support was paid.
In November 2014, Nicholas started taking K.T. to Lindsey Overton at
Chatterbox Speech “at least once a week.” Overton would work with both K.T.
and Nicholas and would put homework for K.T. on the post-session paperwork.
Nicholas did not tell Misty about the appointments or the homework. Overton
testified Misty was not made aware of these weekly appointments until January
2015 or later. Overton observed Misty is receptive to Overton’s coaching—Misty
was willing to do charts for K.T. and was “on board” with Overton’s “plan.” Misty
and K.T. met with Overton three times. Overton testified, based on her
numerous sessions with Nicholas and K.T. and her three sessions with Misty and
K.T., Nicholas is “on track” as a parent regarding commitment to CIs while Misty
is “trying” but K.T. refuses to wear the CIs with her. Overton admitted she
provided Nicholas with more information than she provided to Misty. While
Overton believed K.T.’s development was on track, she did not believe it was 7
appropriate to take off K.T.’s CIs when he was in the car, or was angry and
frustrated, or was having bad behavior. Overton clarified:
[I]f we’re taking the [CI’s] off but we’re providing [signs or sign language or picture visuals,] I guess that’s an approach to take. It wouldn’t be one I would want to take, but it’s an approach that could work. I would guess that the reason they would be taken off is to keep them from being broken . . . . I’m not sure why he’s learned that if he’s mad or angry, the way to respond is to do something to his [CIs]. But he has.
Sarah Welch is the “deaf and hard of hearing” teacher at K.T.’s school and
has worked with K.T. for three years—five one-half days each week. Welch
testified, if K.T. has the CIs on he does not “take them off unless there’s a
behavior issue. And then, that’s kind of his go to thing. He takes them off and
throws them.” Welch explained the school’s efforts to close K.T.’s language gap
“and getting his language built so he can understand instruction” in a general
education classroom: “It is a combination between the CIs, which help with
auditory, oral skills, and also maintaining his sign language so that he has a
mode of communication, whether it’s going to be oral or it’s going to be sign
language.”
Welch observed the CIs are “typically on” when Nicholas brings K.T. to
school. When Misty brings him to school, “sometimes they’re on. But usually
they’re either in his backpack or she gives them to K.T.’s associate.” Welch will
then offer K.T. the CIs, and she described her typical procedure: “[W]hen his
behaviors have gotten bad this year, I get them out and I offer them to him and
he doesn’t always put them on. But I don’t struggle with him because they have
been broken so many times. So then I just put them back on my desk.” 8
Welch believed K.T. “does better behaviorally” and is “easier to redirect”
when he is wearing the CIs. On bad-behavior days, K.T. yells and screams, and
“in the past,” he has hit or thrown things at adults. After the school principal calls
for one of K.T.’s parents to come to his classroom, Welch has observed both
parents are able to calm K.T. with the CIs off. Welch can also calm K.T. with the
CIs off. Welch explained K.T.’s behavior issues and frustrations “stem from his
lack of communication” in both forms—sign and auditory. “So he’s frustrated
because he can’t express what he wants or needs. So no, I can’t say that it’s
from one or the other [parent].”
Sometimes when K.T. is acting out, Welch removes him to a less-
stimulating area, where K.T. typically throws his shoes off and also throws his
CIs off. Because K.T. has tended to break the CIs, Welch sometimes will
remove the CIs “before [K.T.] has a chance to take them off and throw them.”
K.T. usually calms himself down, is returned to the classroom, and Welch offers
him the CIs. Sometimes K.T. puts them back on, and sometimes he does not.
Misty believes the children have more of a daily routine at her household
than they do at Nicholas’s household. Misty testified her form of discipline is to
take away toys or television time or to have a time out and she does not spank
the children, while Nicholas used spanking as a discipline technique. Nicholas
testified he had been “spanked as a kid and I believe it gave me a better
knowledge of what’s right from wrong . . . . And at first I thought maybe it was
right [to spank] but I kind of changed my mode and did more grounding things 9
and taking away items.” Nicholas testified he had not used spanking as
punishment for four years.3
It is undisputed the parties have had numerous disagreements about the
children’s medical care and the appropriate treatment. For example, Nicholas
was unhappy when K.T. was recently prescribed the ADHD medication. Misty
stated she consistently provided Nicholas with notice of all the children’s
appointments and set up appointments on the days Nicholas is off work.
However, Nicholas refused to do the same for her, and if he did tell her, it was
untimely. Misty’s testimony is supported by Nicholas’s actions of failing to inform
Misty when, three months after Misty filed for dissolution, Nicholas started taking
K.T. to an entirely new speech therapist. In this regard, the record demonstrates
Misty is the parent seeking to keep Nicholas up to date on the children’s
appointments and activities while Nicholas has chosen not to extend the same
courtesy to Misty.4
3 Misty reported Nicholas to the Iowa Department of Human Services (DHS) based on bruising she found on K.T. After an investigation, the report’s conclusion was “not founded.” Nicholas testified the DHS worker “gave me an order . . . stating no aggression toward the children, specifically [K.T.].” 4 At trial, Nicholas presented a letter from an audiologist at the University of Iowa (“it is crucial for K to use his [CIs] on a full time basis”) and from teacher Welch (on the days K comes to school without his CIs on, “[t]hese days are very difficult for him and his behavior reflects this”). On cross-examination, Nicholas admitted Misty was not given either letter and also admitted it is important that Misty be included in this type of information. To justify his failure to give Misty the audiologist’s letter, Nicholas claimed the audiologist’s information is “something that’s been spoken of since he got [the CIs] to begin with.” To justify his failure to give Misty the letter from teacher Welch, Nicholas claimed he spoke with Misty about the information “prior to this letter.” Nicholas’s behavior demonstrates gamesmanship during the dissolution process instead of the preferable process of working with Misty to jointly provide the best care for their children. 10
Five weeks before trial, Nicholas and Misty both took K.T. to his initial
appointment with a play therapist in Ottumwa. Thereafter, Nicholas has not
followed up with making his own appointments with K.T. Misty testified the play
therapist put K.T. on “a very strict program that if you don’t follow through and do
it in both households, it can disrupt” him. Misty believes K.T. is becoming
confused because he does not have the same rules in Nicholas’s household.
One suggestion from the play therapist was for each child to have one-on-one
time with the parents. Misty follows that suggestion with the help of a friend.
Prior to trial, the parties stipulated to the resolution of the division of their
assets and debts, and the court incorporated the stipulation into the decree. At
the time of trial, Misty had accepted a job with American Gothic Home
Association. She will be providing in-home care for eight dollars per hour,
generally working Monday through Friday from 8:00 a.m. to 1:00 p.m. Misty
stated her weekly hours will vary from twelve to twenty-five hours per week.
Misty’s schedule will allow her to take the children to and from school and to their
numerous appointments. On cross-examination, Misty agreed she is
underemployed and also agreed she is capable of earning a full-time minimum
wage.5 The court’s ruling on child support was based upon Misty being
employed full-time.
5 Misty had consistently been employed through 2014 until she was injured at Work Force (material handler for one and one-half months until she broke a rib). Her previous jobs were through Manpower (at Vermeer—two months, September 2014 to early November 2014), ASI (painted windows at Pella Corp.—five months, April 2014 to August 2014), Temp Associates (sand molds for Bender’s—three months, January 2014 to March 2014), Menard’s (two years ending December 2013), and working at her own 11
Nicholas testified he is taking a new job with Mahaska Bottling in
Oskaloosa with a full-time, annual salary of $39,140 for driving a vending-
machine route Monday through Friday from 6:00 a.m. until his job is done—
between 2:00 and 5:30 p.m. each day. Nicholas had arranged for the necessary
babysitting, a sitter who allows children to be dropped off at 5:30 a.m. This job
provides Nicholas with health insurance.
Nicholas testified he has little difficulty in having K.T. wear his CIs
consistently and K.T. wears them during all waking hours, allowing K.T. to get the
most out of the CIs. Nicholas admitted K.T. has had behavioral issues and
attempted, though rarely, to take his CIs off at Nicholas’s house. Nicholas has
gone to school to help K.T. calm down, and the CIs have been broken at school.
When parts for the CI break at Nicholas’s house, he has backup parts. On cross-
examination, Nicholas admitted he has not given Misty backup parts because “of
the way some parts are getting broken constantly at her house.”
Q. Do you think it’s important Misty have access to [backup parts]? A. There’s been times when she’s gotten ahold of me and I’ve gotten them to her. Q. Do you think it’s important that [K.T.] have access to those parts? A. If all the parts are broken, how can he use them? If they are constantly getting parts for two of them broken, or three, then he doesn’t have that access anyway. Q. You’re not accusing Misty of breaking those parts are you? A. No.
If Nicholas needed to order replacement parts, he stated the parts usually arrive
in two days.
beauty salon (almost one year). At some point Misty began receiving $659 per month in supplemental security income (SSI) payments for K.T. It appears Misty and the children lived on these payments from January 2015 through trial in early April 2015. 12
Misty testified she understands it is important for K.T. to wear the CIs and
she appropriately takes them off after “he’s having attitude” to prevent him from
breaking parts. Misty first tries to redirect K.T., when that doesn’t work then the
CIs come off. “And working with [the play therapist], she’s been helping me get
other ways of redirecting him so we’re not getting the CIs off right away.” Misty
believes one hour is the maximum amount of time K.T. has the CIs off for an
attitude problem at her residence, and “most of the time,” he goes only fifteen to
twenty minutes without the CIs.
According to Misty, K.T. routinely wears his CIs at her house and she
does whatever is possible to make sure he wears them. Misty believes the better
choice when K.T. is “having attitude” is for her to remove the CIs for a short time
to prevent him from breaking a part that would take time to replace and would
render K.T. unable to hear during the wait. Misty explained she does not remove
the CIs as a punishment and removing the CIs does not take away K.T.’s ability
to communicate because “he can still sign.” Also, Misty does not always take off
the CIs when K.T. is angry: “I’ve placed him on my lap and sit there working
through anger and attitude with his CIs on.” But, Misty admitted she sometimes
has a difficult time having K.T. put on his CIs. She also admitted his routine
when he sees her after being dropped off by his father is to take off his CIs and
hand them to her “but they end up back on him.” Misty stated K.T. has his CIs on
at home before they head to school in the car, a fifteen to twenty minute drive,
and she described her routine:
[He] doesn’t like to wear the CIs in the car because he will chuck them up to the front window in the car when I’m driving. So 13
as opposed to him throwing his CIs while I’m driving and losing the pieces in the car driving to school, I don’t put them on him in the car so he doesn’t get that chance to throw them to lose pieces in the car. I’ll put them on him in school, and the last [IEP] meeting we had about his behavior, Kathy Utterback [AEA social worker] said why don’t you give them to [K.T.’s one-on-one aide] and we’ll take care of it here at school. Teacher Welch testified the discussion at the meeting was to try to
alleviate the struggle at school to get him to put on the CIs. “And it was brought
up to whoever’s house he came from, to make sure that he had them on when he
came to school.” Welch recalled Misty stating she “would put them on in the
morning and he would take them off in the car, so she would just put them in his
bag.” Welch testified the school was okay with Misty’s plan because we “can’t
say you have to put them on. It was just a suggestion to try to alleviate some of
the behaviors.” Welch also testified her own practice is also not to force K.T. to
put on the CIs if he does not want to wear them.
Kathy Utterback, the school social worker from the AEA, testified K.T.
“interacts pretty well” in the classroom, he is “comfortable there,” and he
participates. She believes there have been more concerns this year with K.T.
following the rules, stating: “When he has the [CIs on,] he just has better access
to what is going on around in his environment so he hears and follows the rules
better.” Utterback’s contact with Misty and Nicholas has been at the annual IEP
meetings, and she observed both parents have always been present and
participating appropriately. According to Utterback, at the February 2015
meeting, everyone agreed K.T.’s days went better if he arrived at school wearing
the CIs. Additionally: 14
Q. And isn’t it correct that you told her [at the meeting] to put the CIs in the bag and bring them to school? A. Uh-huh. We told her, we talked about it that it’s not worth fighting over and we don’t fight with him at school with that either. Q. You don’t fight with him about wearing the CIs? A. No, because that typically turns into kicking, hitting, running around the room. And so, we talked about it’s better to have them in the classroom and at least getting information than having those kinds of experiences.
At trial, Misty stated she thought it was important for the children to have a
relationship with their father but she can provide more consistency and stability.
Specifically, “I’ve raised the kids, taken care of them. I get the kids to their
appointments on time. I make sure that they are taken care of.” Nicholas
believed he should have physical care because, among other reasons, he is
more successful in having K.T. wear his CIs throughout the day.
The guardian-ad-litem’s April 2015 report stated H.T. “is a lively and
engaging nine year old, currently in third grade.” She enjoys playing softball, and
her dad helps out as a coach. H.T. “didn’t identify anything at either house that
made her unhappy.” The report concluded: “These are two wonderful children
who appear to have good family and community support. Hopefully the parties
can continue to provide supportive environments.”
The district court found both parents can provide for the children’s
“respective needs to enable them to thrive” and “Misty has been and continues to
be the primary caregiver.” The court also concluded, while Nicholas “is
somewhat better qualified, situated, or motivated to deal with K.T.’s special
needs arising from his deafness,” the “evidence also establishes that both parties
are capable of accomplishing that goal and are motivated to do so.” The court 15
found Nicholas’s testimony to be “somewhat more credible” than Misty’s
testimony, but thereafter specifically found its credibility determination “does not
significantly diminish either party’s ability to care for the two children going
forward.”
The court concluded physical care should remain with Misty, due to (a)
Misty having been the primary caregiver “during most of their lives”; (b) despite
Nicholas being “somewhat better situated to care for [K.T.], both parties are able
and willing to care for K.T., including his special needs”; (c) the fact Nicholas’s
work hours begin at 6:00 a.m. and continue to an indefinite time in the afternoon
“will create issues concerning the care and supervision of the children;” and (d)
“although a close question, the best interests of the children will be served by the
placement of their physical care with Misty.”
Nicholas now appeals, claiming the court should have awarded him
physical care. Misty cross-appeals.
II. Standard of Review
We review the district court’s decision de novo. In re Marriage of
McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). We examine the entire record and
decide anew the legal and factual issues properly presented. In re Marriage of
Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). “However, we recognize that the
district court was able to listen to and observe the parties and witnesses.” In re
Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009). Consequently,
we give weight to the district court’s findings of fact, especially when considering 16
the credibility of witnesses, but we are not bound by them. In re Marriage of
Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009).
III. Physical Care
Nicholas requests we reverse the district court and grant him physical care
of the children. Physical care is the right and responsibility to maintain a home
for the children and provide for the routine care of the children. In re Marriage of
Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). “When considering the issue of
physical care,” the children’s best interests are “the overriding consideration.” Id.
(recognizing the district court’s opportunity to observe the witnesses). The
ultimate objective is to place the children in the environment most likely to bring
them to healthy physical, mental, and social maturity. In re Marriage of Hansen,
733 N.W.2d 683, 696–99 (Iowa 2007).
Misty is correct in asserting we give consideration to placing children with
the historical caregiver. See In re Marriage of Decker, 666 N.W.2d 175, 178–80
(Iowa Ct. App. 2003). However, Nicolas is correct that “no one criterion is
determinative” and our courts apply a multi-factored test. Hansen, 733 N.W.2d at
697. The “fact a parent was the primary caretaker prior to separation does not
assure [she] will be the custodial parent.” Decker, 666 N.W.2d at 178.
As the district court recognized, Misty and Nicolas are both competent and
loving parents who are sincere and motivated in their desire to care for their
children. Each parent would be a suitable caretaker for the children since each
has shown in the past the love and nurturing the children need. Thus, the choice 17
of physical care in this case necessarily turns on narrow and limited grounds. In
such cases, “stability and continuity of caregiving are important factors” and
“preservation of the greatest amount of stability possible is a desirable goal.”
Hansen, 733 N.W.2d at 696–97. These factors favor a parent who was primarily
responsible for the physical care of the minor children. Id. After our de novo
review, we agree with the district court’s conclusion Misty was the primary
caregiver for the children. Although Nicholas disputes this finding, claiming he
shared equally in physical care, we defer to the district court, recognizing its
opportunity to observe the parties in reaching its conclusion. Accordingly, the
concepts of continuity, stability, and approximation do not support this court
changing physical care to Nicholas; physical care to him is not an alternative
“least disruptive to the children.” See id. at 700.
On our de novo review, we also concur in the district court’s decision to
place the children in Misty’s physical care. While we review de novo, we defer to
the district court’s fact findings and credibility assessments. Gensley, 777
N.W.2d at 713. Specifically:
A trial court deciding dissolution cases is greatly helped in making a wise decision about the parties by listening to them and watching them in person. In contrast, appellate courts must rely on the printed record in evaluating the evidence. We are denied the impression created by the demeanor of each and every witness as the testimony is presented.
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (internal quotation
marks omitted). In making its physical-care determination, the district court
considered the appropriate factors and provided a well-reasoned explanation.
Because the court had the opportunity to observe the parties and witnesses and 18
concluded it was in the children’s best interests to grant physical care to Misty,
we decline to reverse that judgment and affirm on the issue of physical care.
IV. Dependency Exemptions for Income Tax
Nicholas took H.T. as a tax exemption for 2014, and Misty took K.T. At
trial, both parties sought to have the tax exemptions similarly divided. However,
the district court sua sponte awarded the dependency exemptions for both
children to Nicholas. In a post-trial motion, Misty asked the court to revise this
determination, and the court declined, ruling: “Nicholas has had full-time
employment for many years and continues with full-time employment. In
addition, Misty has not established a consistent history of full-time gainful
employment. Nicholas will benefit significantly more from the tax dependency
exemption than will Misty.”
On cross-appeal, Misty seeks one of the dependency exemptions,
claiming her need for this exemption is greater than Nicholas’s need due to her
annual earnings of $10,400. Misty also claims the court’s ruling is inequitable.
We first note Misty testified her hours would vary from twelve to twenty-
five hours per week. Only if Misty worked twenty-five hour weeks for all fifty-two
weeks in the year would she would earn $10,400. Nevertheless, based on the
facts (1) Misty is entering a new position without historical earnings, (2) Misty
may likely be able to benefit from the dependency exemption or special tax
credits, and (3) Nicolas asked the court to split the dependency exemptions and
allocate one to each parent, we modify the district court’s ruling and grant one 19
exemption to each party as was done in the 2014 tax year—Nicholas shall claim
H.T. and Misty shall claim K.T. The parties will alternate this exemption on a
yearly basis when one child remains a dependent as long as child support is
current. If it turns out Misty’s future earnings demonstrate she will not benefit
from the exemption, Nicholas may apply to modify this provision.
V. Deduction of K.T.’s SSI Benefits from Nicholas’s Child Support
The court ordered Nicholas to pay Misty $750 per month in child support.
The court also ruled: “As long as Misty is receiving SSI benefits for the child K.T.,
those benefits shall offset the amount of child support owed by Nick to Misty for
the child K.T.” Accordingly, the court ordered Nicholas’s child support “reduced
by the sum of $659 per month,” i.e., support of ninety-one dollars per month.
On appeal, Misty challenges this offset, claiming the court’s ruling
provides “little to no explanation as to the reason” for the SSI offset. We agree
with Misty; the court did not provide a rationale or analysis for the offset and did
not cite any statutory or case authority supporting the offset.
This court has discussed the interplay between SSI payments and child
support. See In re Marriage of Benson, 495 N.W.2d 777, 781-82 (Iowa Ct. App.
1992). We found SSI is “public assistance” and recognized payments for public
assistance are not included as income under the child support guidelines. See
id. at 781 (declining to include the children’s SSI payments as income for the
mother “because we consider [SSI] as public assistance . . . and also because
we recognize the amount of [SSI] received, if any, will be affected by the child
support that [the father] is ordered to pay”). We concluded: 20
[SSI] is based on need and anticipates that it will only come into play if minor children do not have sufficient support from their parents. We will not structure child support so as to make families eligible for [SSI]. Eligibility for [SSI] should be determined after the courts have fixed reasonable child support based on the noncustodial parent’s ability to pay. Id. at 782. See, e.g., In re Marriage of Keim, No. 04-0034, 2004 WL 2674274, at
*2 (Iowa Ct. App. Nov. 24, 2004) (recognizing “Iowa Court Rule 9.5, of the Child
Support Guidelines, states that, ‘Gross monthly income does not include public
assistance payments’” and rejecting father’s claim the SSI payments received by
mother and son should have been included in mother’s income for purposes of
calculating child support).
Accordingly, under the circumstances of this case, we modify the
dissolution decree to strike the provision giving Nicholas “a credit to” his child
support obligation based on SSI payments attributable to K.T. of $659 per month.
We affirm the court’s determination Nicholas should pay child support of $750
per month.
VI. Appellate Attorney Fees
Misty requests attorney fees for this appeal.6 We have discretion in
awarding appellate attorney fees. In re Marriage of Okland, 699 N.W.2d 260,
270 (Iowa 2005). “We consider the needs of the party making the request, the
ability of the other party to pay,” and the relative merits of the appeal. In re
Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). Misty successfully
6 We do not address Misty’s conclusory request that we should award her trial attorney fees. See Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (holding random mention of an issue, without analysis, argument, or supporting authority is insufficient to prompt an appellate court’s consideration). 21
defended the decision of the district court. Her imputed yearly income is
considerably lower than Nicholas’s annual income. Additionally, Misty was
successful on her cross-appeal. Accordingly, we conclude Nicholas should pay
$750 toward Misty’s appellate attorney fees. Costs of this appeal are taxed to
Nicholas.
AFFIRMED ON APPEAL; MODIFIED ON CROSS-APPEAL.