IN THE COURT OF APPEALS OF IOWA
No. 14-1081 Filed July 9, 2015
MICHAEL KONZEN, Plaintiff-Appellant,
vs.
EMALEE GOEDERT, Defendant-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, David F. Staudt,
Judge.
A father appeals the court’s refusal to modify the physical care provisions
of the custody decree. AFFIRMED.
Matthew L. Noel of Mayer, Lonegran & Rolfes, Clinton, for appellant.
Nathan Legue and Catherine Zamora Cartee of Cartee & McKenrick, P.C.,
Davenport, for appellee.
Heard by Vogel, P.J., and Potterfield and Mullins, JJ. Bower, J. takes no
part. 2
VOGEL, P.J.
Michael Konzen appeals the district court’s decision, which denied his
petition to modify the physical care provisions of the custodial decree. He
maintains that he should have physical care of his two daughters, while the
mother, Emalee Goedert, should have supervised visitation. At a minimum, he
claims he should not have been ordered to have only supervised visitation. He
also claims the district court incorrectly determined his child support obligation.
On our de novo review, with appreciation for the district court’s extensive
credibility determinations, we affirm the district court’s modification decision and
its determination as to the current amount of child support due.1
I. Background Facts and Proceedings.
Michael and Emalee are the parents of two daughters, age nine and
seven at the time of the modification trial. The parties never married, though they
were engaged for a brief time, and they lived together until November of 2009,
when allegations surfaced that Michael was sexually abusing the girls. Emalee
moved out of the house, and a department of human services (DHS)
investigation was undertaken. An examination of the girls did not reveal any
physical signs of abuse, though both girls told investigators that Michael “poked”
them in the crotch and they were “not supposed to tell.” The DHS investigation
1 Emalee, through counsel, moved for leave to amend the appendix filed in this case, noting pages from the district court’s November 2, 2010 decision were missing from the appendix. Emalee sought leave to file a supplemental appendix that included the full November 2, 2010 district court ruling. Having considered the record in this case, we grant the motion and consider the supplemental appendix to be filed as of the date the motion was filed. 3
resulted in a “founded” determination, but that decision was appealed, and after
Michael negotiated with the State, the finding was changed to “not confirmed.”
During the pendency of the DHS investigation, Michael filed an action for
physical care of the children. In response, Emalee sought a temporary
injunction, which issued on February 18, 2010, preventing Michael from seeing
the children. Michael sought to dissolve or vacate this injunction, but after a
hearing, the court denied Michael’s request on April 9. However, on April 26,
2010, the court entered a stipulated order on temporary matters, which provided
the parties would engage in therapeutic reunification between the children and
Michael through a counselor. It also set the child support at $694.00 per month.
The case proceeded to a trial in October 2010; however, before the trial
was complete, the judge urged the parties to settle, and after meeting with the
parties, a judge-mediated settlement occurred. The court memorialized the
parties’ agreement in an order filed November 2, 2010. In the order, the court
provided that Emalee would have physical care subject to Michael’s visitation.
The court also determined Michael was required to pay child support and ordered
the parties to submit income information for the court to calculate the appropriate
amount of support under the guidelines, after which the order would be
amended. The court entered a separate visitation order that outlined how the
children were to be reintroduced to Michael—through therapeutic reintegration
with Andrea Beacham, J.D.—and Michael was to receive individual counseling
with Marc K. Wruble, Ph.D. After the first meeting between Michael and the
children, Ms. Beacham was to set a schedule for future visits. The court stated
the order was to memorialize the parties’ agreement and “address initial visitation 4
issues that are expected to be reassessed at a later point in time.” The court
directed the therapists to present the court with a report at the expiration of the
services, or at a minimum in three months.
The court entered a separate order on December 20, 2010, entitled,
“Addendum to Judgment re: Custody and Visitation,” in which the court—as
anticipated in the November 2 order—calculated then set Michael’s child support
obligation at $555.00 per month. It further provided the percentage of uncovered
medical expenses for the children that each parent was obligated to cover.
After receiving reports from Ms. Beacham and Dr. Wruble, the court filed a
subsequent order on April 22, 2011, which provided it was an “addendum to the
Court’s previous orders regarding custody, visitation, and child support. It shall
serve as the final order regarding the petition filed herein.” The court ordered all
counseling sessions for the children would cease, all interactions between the
children and Emalee’s mother2 would be subject to the agreement of the parties
and supervised by Emalee, the parties would now share physical care of the
children equally, and no child support would be paid.
When the district court denied Emalee’s posttrial motion, she appealed,
and the appeal was transferred to this court. See Konzen v. Goedert, No. 11-
1028, 2012 WL 1859931, at *1 (Iowa Ct. App. May 23, 2012). Finding the judge
should have recused herself and refrained from issuing further orders involving
this family after participating in settlement negotiations, our court “vacated all the
2 It was Emalee’s mother who first brought the sexual abuse allegations made by the children to Emalee’s attention, and Michael insists that the maternal grandmother planted the abuse allegations in the children’s minds. 5
orders and judgments issued after the October 26 settlement conference—
except the November 2, 2010 ‘judgment re: custody and visitation.’” Id. at *4.
During the pendency of the appeal and before procedendo was issued,
the parties continued to operate under the district court’s April 22 order providing
for joint physical care. Procedendo was issued on August 29, 2012, after the
supreme court denied further review. Physical care of the parties’ children
returned to Emalee, who denied Michael contact with the children, assuming the
November 2 order providing supervised visitation was to be followed. On August
31, 2012, Michael filed an “Emergency Application for Visitation and Physical
Care.” After a hearing, the court denied the application in December 2012,
finding it lacked jurisdiction but noted the parties had agreed to voluntary
supervised visitation between Michael and the children. It was noted in the order
that Michael would be filing a petition to modify the physical care provisions of
the November 2, 2010 order, and Michael did file his petition for modification of
custody, child support, and visitation on February 14, 2013.
During the pendency of the modification action, counsel for Emalee also
filed a notice to withhold income for child support, putting Michael’s employer on
notice that the current monthly support obligation was $555.00 and past due
support of $111.00 monthly should also be withheld, for a total monthly obligation
of $666.00. However, Michael was laid off from his job in May of 2012, so the
support obligation was taken out of his unemployment benefits until those ran
out. After losing his benefits, Michael worked for his cousin on a cash basis
doing various jobs, and Michael failed to pay any further amount towards child
support up to the point of the modification trial. 6
Michael’s modification petition proceeded to a seven-day trial in January
and February 2014. The court issued its decision June 4, 2014. In that decision
the district court stated:
It should be noted for the record that the parties agreed, given the unique nature of the procedural history of this case, that evidence of events that occurred prior to the final ruling issued by Judge Ackley shall be considered in reaching a decision on this petition for modification. Both parties acknowledge that it is typically the rule that events occurring prior to the decree or final order in family law cases will not be considered at the time of trial on a petition for modification. Here, the parties have agreed that the Court should take into consideration the events that led up to the final order entered by Judge Ackley on November 2, 201[0]. The court has agreed to listen to evidence concerning events prior to the November final order as it seems apparent that the history of this couple requires a review of their situation as a whole. The court does intend to rule as to whether a substantial change in circumstances has occurred since the November order utilizing some evidence that occurred prior to November 2, 201[0].
After reviewing all the evidence presented and making extensive credibility
findings, the district court denied Michael’s petition, concluding “[Michael] has
failed to prove that there has been a substantial change in circumstances since
the entry of the original decree.” In addition, the court found “that [Michael] has
failed to show that joint physical care would be an appropriate modification even
if he had shown that a substantial change in circumstances had occurred.”
While the court rejected Michael’s attempt to modify the physical care of
the children, the court did modify the visitation arrangement to provide that future
visitation between Michael and the children will be supervised by a relative of
Michael’s within the third degree of consanguinity. At no time were the children
to be left in Michael’s care without supervision. The court set a schedule for
Michael’s visitation to include Wednesday evenings, alternating weekends (the 7
order provided the children can stay overnight with Michael’s mother or another
relative of Michael’s that Emalee approves of and Michael is not allowed to stay
overnight or participate in bed time3 or bath time4 activities), and alternating
holidays. The court warned any violation of the visitation conditions would be
“met with severe sanctions.” The court denied trial attorney fees and found
Michael had willfully and intentionally failed to pay his child support obligation
since the entry of the prior court of appeals’ opinion.
From this order Michael appeals.
II. Scope and Standard of Review.
Because a petition to modify the custodial provisions of a prior decree is
heard in equity, our review is de novo. Melchiori v. Kooi, 644 N.W.2d 365, 368
(Iowa Ct. App. 2002). Precedent has little value as we must evaluate the appeal
in light of the unique circumstances of each case. Id. However, we do give
deference to the district court’s factual findings, especially its credibility
determinations, “[b]ecause [the] trial court was present to listen and observe the
witnesses.” In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Our
paramount consideration is the best interests of the children involved. In re
Marriage of Hoffman, ___ N.W.2d ___, ___, 2015 WL 2137550, at *4 (Iowa
2015).
3 The children had alleged that Michael would touch their “private parts” when he would scratch their backs as he put them to bed. 4 There were allegations that Michael would shower or bathe with the children and that everyone would be naked. 8
III. Physical Care and Visitation.
The law guiding the modification of the physical care provisions of a prior
decree is well-established in Iowa:
To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children’s best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children’s well-being.
Id. at *5. It is a heavy burden for the person seeking modification to carry
because “once custody of children has been fixed it should be disturbed only for
the most cogent reasons.” Id.
Michael contends the evidence he presented was sufficient to satisfy the
standard to modify the prior decree to place the children in his physical care and
order Emalee to receive counseling regarding her attitude toward the children.
He points out he testified to Emalee’s mother’s interference and “meddling” in his
and Emalee’s lives and the mother’s false allegations in the past regarding their
care of the children. The court discounted Michael’s testimony regarding the
interference of Emalee’s mother in light of the fact that neither party called the
mother to testify at trial and no expert evaluating this case ever spoke with
Emalee’s mother. There was also no independent evidence the children were
persuaded or coerced by Emalee’s mother or anyone else to make false
accusations of sexual abuse against Michael. The court would have had to 9
accept Michael’s word alone that such a plot existed against him, and the court
had already concluded Michael lacked credibility.
Next, Michael directs our attention to the expert testimony he offered from
Dr. Wruble, Ms. Beacham, William S. Logan, M.D., and Carroll D. Roland, Ph.D.
Dr. Wruble and Ms. Beacham provided services to Michael and the children
following the November 2, 2010 decree. Dr. Wruble provided counseling to
Michael and Ms. Beacham supervised the visits between Michael and the
children. Ms. Beacham testified she never saw any fear or apprehension from
the children when in Michael’s presence as she would expect if there had been
sexual abuse. However, the district court appointing Ms. Beacham to the case
directed that she was not to assess the credibility of the allegations or discuss
the allegations with the children as this was to be left to the children’s therapists.
Dr. Wruble did not do a full workup on Michael’s risk of sexually offending,
but he did perform a screening assessment. Based on the testing that was
performed, Dr. Wruble determined Michael had a very low risk of sexual
offending. Dr. Wruble did meet with Michael and the children on six or seven
occasions and did not see any behaviors in the children that caused him any
concern, nor did he see any kind of grooming behavior by Michael. But again, it
was not within his assignment from the court to ascertain the veracity of the
children’s allegations. Dr. Wruble did disagree with the victim-based counseling
that had been provided to the children through the DHS because it starts with the
assumption the abuse occurred. He would instead suggest safe-harbor
counseling for the children. 10
Michael hired Dr. Logan, who performed a sexual offender evaluation
based on an interview with Michael and a review of the relevant information in
this case. Dr. Logan found no indication that Michael had a history of sexual
offending or would be likely to commit incest with his daughters. He also offered
his evaluation of the DHS interviews with the children and indicated he thought
the children’s responses were rehearsed or coached, or the interviews were
conducted improperly. Again, Dr. Logan never met Emalee or her mother, or the
children in this case.
Finally, Michael directs us to the testimony from Dr. Carroll Roland, whom
the district court appointed in this modification trial to do an assessment of the
children’s mental health and make a recommendation as to whether counseling
was required, and if so, what type of counseling. Dr. Roland concluded the
children were not in need of on-going counseling and concurred in Dr. Wruble’s
concern about victim-based counseling. Dr. Roland conducted testing on the
children to determine their parent of choice at two different times during the
pendency of this case. While the younger child consistently chose Emalee at
both testing periods, the older child’s scores showed a deterioration in her
relationship with Michael between the testing periods. Dr. Roland surmised this
was likely due to limited contact with Michael, continued victim-based counseling,
and degrading comments by Emalee’s family. While Dr. Roland stated this
pattern would likely continue if the current custody arrangement remained
unchanged, he did not recommend shared care in light of the likelihood of future
allegations of sexual abuse. 11
Dr. Roland also gave both parents the Minnesota Multiphasic Personality
Inventory test to measure mental health and both results were in the normal
range. In addition, Michael was given a child abuse potentiality test, which
measures the extent to which he identifies with characteristics similar to those
who are known to physically abuse, but not sexually abuse, children, and the
results indicated he did not have significant indications of characteristics similar
to known child abusers.
Michael essentially argues that the district court ignored the vast weight of
the evidence when it denied his modification petition. He claims his evidence
was based on independent observations by highly qualified professionals, some
of whom were appointed by the court, and this evidence demonstrates that he
did not have any sexually inappropriate contact with his children and the
children’s current environment is toxic.
The district court did criticize Michael’s experts for relying solely on reports
and conclusions provided by Michael and for failing to meet with Emalee or her
mother. Because the court disagreed with Michael’s contention that Emalee’s
mother had masterminded the sexual abuse allegation, the court disregarded the
experts’ concerns about victim-based counseling. Because of the lack of
evidence to support a plot to fabricate the allegations and because the court
concluded the children were continuing to show the effects of the abuse they
alleged, the court ordered continued counseling for the children per the DHS
recommendation. Ultimately, the court’s decision, and its rejection of the opinion
of these experts, boiled down to the court’s determination that Michael’s
testimony lacked credibility. 12
The court found Michael was untruthful when it came to reporting his
income following his May 2012 job loss, and the court was troubled by Michael’s
refusal to pay child support. The court found Michael’s explanation regarding a
2008 incident at Wisconsin Dells, at which Emalee’s niece accused Michael of
inappropriately touching her, lacked credibility.5 The court found the niece’s
testimony, along with the testimony of the niece’s friend and family members, to
be consistent, credible, and truthful. The court also concluded Michael lied to the
investigating police officer who questioned him about this incident during the
DHS investigation.
The court concluded Michael was lying regarding the incident in which the
older child stated Michael showed her portions of her interview at the child
protection center and then berated her about the statements she made in the
interview. While the court noted Michael did voluntarily submit to and pass a
polygraph examination as to allegations made by the youngest daughter, the
court found Michael failed to acknowledge to the examiner that he had two
daughters and polygraph examinations are unreliable. Finally, the court noted
Michael’s testimony regarding his involvement with his new girlfriend, who had
5 In August of 2008, Michael, Emalee, and the children attended a family vacation in Wisconsin Dells with Emalee’s family. Emalee stayed at the condominium with the children, while Michael went to the waterpark with some of Emalee’s family including Emalee’s eleven-year-old niece and the niece’s friend. The niece alleged that while the group was waiting in line for a ride, she repeatedly felt Michael’s fingers in the back of her swimming suit, which made her uncomfortable, and she tried to inch away. Also, while in line, the niece testified Michael told her the two of them should sneak into the hot tub alone that night after hours. The niece also remembered Michael making a comment about liking all “pussies.” On the way back from the waterpark, the niece testified Michael aggressively slapped her butt, and her friend, who witnessed the slapping thought the act was sexually suggestive. The niece told her friend about the comments and the friend became scared and called her father to come pick her up. Michael was asked to leave, and he, Emalee, and the children left that night. 13
just turned eighteen when she moved into Michael’s house after knowing him for
a short period of time, lacked credibility.6 The court concluded it was clear
Michael had been providing his underage girlfriend with alcohol and both of them
had attempted to mislead the court into believing that their romantic relationship
did not begin until after the girlfriend moved into Michael’s home.
Conversely, the court found Emalee’s testimony very credible, particularly
her testimony that the period of shared physical care when the case was
previously on appeal did not go well. The children made additional accusations
of sexual abuse during this period, and Emalee testified Michael was
manipulative and controlling. The children’s school principal and the younger
child’s teacher testified that in December 2013 the younger child told her teacher
that she had to go see her dad the next day and that “he was going to ‘F’ her.”
One of the counselors the girls saw following the termination of the joint physical
care arrangement testified the older girl reported Michael was again
inappropriately touching her. The girls’ counselors, based on their therapy with
the children, were uncomfortable with Michael having unsupervised contact with
the children. In addition, another one of the children’s counselors, Jennifer
Hoyer, testified that the children displayed violent or aggressive play when the
topic of Michael was brought up. After meeting with the children on a number of
occasions, Hoyer testified she told the parties that she now believed that sexual
abuse had occurred.
6 The court also found that Michael’s girlfriend’s testimony regarding her relationship with Michael, lacked credibility. 14
Ultimately, the court determined Michael had not satisfied the heavy
burden to justify modifying the physical care of the children—specifically
concluding Michael did not prove a substantial change in circumstances.
Since the entry of the decree, the only evidence of change would be the joint physical custody participated in by the parties prior to the Court of Appeals’ opinion. The court finds [Michael’s] testimony to be less than credible. It was obvious to the Court that at times he was misleading and lying to the Court. His testimony concerning his version of any occurrences concerning the custodial relationship during the joint physical care period would be found to be less than credible. [Emalee’s] testimony was very credible concerning all of the events which would include the joint physical custody period. [Emalee] testified that joint physical custody period as having not worked very well. The Court finds that [Michael] has failed to show that joint physical care would be an appropriate modification even if he had shown that a substantial change in circumstances had occurred.
We agree with the district court’s assessment. The conditions that existed
between the parties at the time of the modification trial are the same that existed
at the November 2, 2010 order. Sexual abuse allegations had been made
against Michael, and Michael vehemently denies the allegations. The children
continue in therapy to help them deal with issues surrounding the allegations.
The only changes that have occurred include a brief period of joint physical care
while the prior appeal was pending and Michael’s new relationship with his live-in
girlfriend. The court found Michael’s testimony that the period of joint physical
care went well to lack credibility and likewise discredited Michael’s and his
girlfriend’s testimony regarding their living arrangement.
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. 15
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation and internal
quotation marks omitted). Accepting the district court’s credibility assessments,
as we must due to the district court’s ability to see and assess the testimony first-
hand, we agree there has not been a substantial change in circumstances to
justify modifying the physical care in this case.
Michael also claims the court should have, at least, ordered unsupervised
visitation. With respect to modifying the visitation conditions of a prior decree,
the party seeking the modification must prove “that there has been a material
change in circumstances since the decree and that the requested change in
visitation is in the best interests of the children.” In re Marriage of Brown, 778
N.W.2d 47, 51–52 (Iowa Ct. App. 2009). This is a less demanding burden and
requires a less extensive change in circumstances to justify the modification. Id.
at 51.
Here, the district court did find Michael satisfied the burden to modify the
visitation arrangement:
At the time the decree was entered, supervised visitation with nonfamily members was the contemplated result. [Michael] has successfully participated in supervised visitation both following the entry of the original decree and since the filing of the Court of Appeals’ opinion. The court does conclude, however, that during the period of joint physical custody in which [Michael] was left alone with the minor children, allegations surfaced of continued inappropriate behavior. The testimony from various therapists and counselors reflects that the children remain affected by the abuse they allege. Their statements during counseling reflect their continued awareness of abuse. The record reflects that at the very least [Michael] has behaved appropriately with his children when supervised. The court believes that the supervision could be provided by family members of [Michael]. The court has no reason to believe that [Michael’s] family members have any desire to violate a court order. The court does find that a material change in circumstances has occurred concerning visitation. The material 16
change being that [Michael] has successfully participated in therapy and counseling and has successfully participated in supervised visitation for an extended period of time. The court finds that it would be in the best interests of the children to be allowed visitation with their father supervised by relatives of [Michael] at all times.
Michael claims he should be granted unsupervised visitation because there has
not been a founded abuse report against him and he has participated in
numerous supervised visits with no incidents. He claims there should be at least
a way that he can progress to unsupervised visitation. He asserts there is just no
evidence to justify ordering the visits to be supervised “for the next 11 years.”
We again defer to the district court’s finding of fact that things did not go
well when Michael was allowed unsupervised time with the girls during the period
of joint physical care when the prior appeal was pending. New allegations of
sexual abuse surfaced, and the district court determined Emalee was credible in
her description that Michael became manipulative and controlling. We thus
conclude that the district court was correct in determining unsupervised visitation
would not be in the children’s best interests.
IV. Child Support.
Next, Michael claims the district court was incorrect when it determined
Michael was under an obligation to pay child support in the amount of $555.00
per month. Michael notes that the November 2, 2010 order did not specifically
provide for any amount of child support, instead stating that Michael was to pay
child support “in an amount to be determined.” The court went on to require the
parties to submit their most recent paystub with an affidavit so that the court
could calculate the child support guideline amount. The order requiring Michael
to pay $555.00 monthly in child support was not filed until December 20, 2010. 17
Because the prior court of appeals decision vacated all orders after the
November 2, 2010 judgment re: custody and visitation order, Michael contends
he cannot be required to pay $555.00 per month.
The only other order of the court establishing child support was filed April
26, 2010, in the “Stipulated Order on Temporary Matters.” In this order the child
support amount was set at $694.00 per month. Michael contends, however, that
the November 2, 2010 order ceased any temporary child support order. Thus, he
maintains that he has not had a child support obligation since the court entered
the November 2, 2010 order.
Emalee first contends Michael did not preserve error on this claim
because he failed to file a motion under Iowa Rule of Civil Procedure 1.904(2)
when the district court failed to address this claim in the modification decision.
Because we conclude the district court did address this claim in its modification
decision, we reject Emalee’s error preservation argument.
She also claims when the prior appeal decision vacated all orders entered
after November 2, 2010, Michael’s child support reverted to the temporary order
amount of $694.00 per month established in the order on temporary matters as
this child support order remained in effect having been field before the November
2 order.
With respect to temporary orders, Iowa Code section 600B.40A (2013)
provides:
Upon petition of either parent in a proceeding involving support, custody, or visitation of a child for whom paternity has been established and whose mother and father have not been and are not married to each other at the time of filing of the petition, the court may issue a temporary order for support, custody, or visitation 18
of the child. The temporary orders shall be made in accordance with the provisions relating to issuance of and changes in temporary orders for support, custody, or visitation of a child by the court in a dissolution of marriage proceeding pursuant to chapter 598.
Iowa Code section 598.11(2) provides for temporary orders to “continue in force
and effect until the action is dismissed or a decree is entered dissolving the
marriage.” In support of her claim that Michael’s support amount reverted to the
amount set in the temporary order, Emalee cites to the case of In re Marriage of
Wagner, 604 N.W.2d 605, 610 (Iowa 2000), where the supreme court determined
a temporary spousal support order was reinstated when the final decree was
vacated. However, this case is factually distinguishable since here the decree of
November 2, 2010, was not vacated in the prior appeal decision but was the only
order left standing.
By entry of the November 2, 2010 order, the temporary child support order
was no longer enforceable prospectively, though it was enforceable for the child
support that had accrued to that point. Bork v. Richardson, 289 N.W.2d 622, 624
(Iowa 1980) (“[N]o new obligations will accrue under the temporary order after
dismissal or decree; it does not proscribe the collection of such amounts already
accrued.”). Therefore, the temporary order cannot be relied upon to set
Michael’s child support obligation following the November 2 order.
However, the November 2, 2010 order did established an obligation for
Michael to pay child support:
Petitioner, Michael Konzen, shall be required to pay child support for the benefit of the minor children in an amount to be determined. The parties shall submit, within thirty days, the parties’ most recent paystubs to the Court with an affidavit as to statutory deductions permitted for purposes of calculating the incomes on the Supreme 19
Court guidelines. Once the Court receives the information, this judgment will be amended to represent the appropriate amount of support.
(Emphasis added.) This order remained in effect following the prior appeal, and
therefore, Michael’s contention that he has not owed child support since the
November 2 order is wholly unfounded. Michael’s obligation to pay child support
was established when this judgment was entered. The fact the record simply
lacked current paystub information, such that the mathematical computation
could not be completed at that time, does not take away from the order’s
enforceability.
The court’s direction for the parties to submit their paystubs and affidavits
was simply the mechanism the court used to obtain the required information so
that the specific amount could be calculated. The court gave the parties time to
comply with providing the necessary evidence. Calculating the amount due was
simply a matter of plugging the income figures of the parties into the statutory
formula and supplementing the November 2 judgment with the missing figure.
We agree with the district court’s conclusion in the modification decree
that Michael owed $555.00 per month starting November 2, 2010, except for the
period of shared physical care. We therefore affirm that portion of the district
court’s decision.
V. Appellate Attorney Fees.
Emalee requests appellate attorney fees. The award of appellate attorney
fees rests in our discretion, and we consider “the needs of the party making the
request, the ability of the other party to pay, and whether the party making the
request was obligated to defend the trial court’s decision on appeal.” In re 20
Fiscus, 819 N.W.2d 420, 425 (Iowa Ct. App. 2012). We also consider the
relative merits of the appeal. In re Marriage of Okland, 699 N.W.2d 260, 270
(Iowa 2005). In light of Emalee’s obligation to defend the district court’s
modification decision and the merits of the appeal, we award her $18,000 in
appellate attorney fees.
VI. Conclusion.
In light of the district court’s extensive credibility determinations, we affirm
the custodial and visitation provisions of the modification decree. We also affirm
the district court’s decision concluding Michael is obligated to pay child support in
the amount of $555.00 per month, except for the period of joint physical care.
Emalee is awarded $18,000 in appellate attorney fees.
AFFIRMED.