Opinion
No. 1-527 / 00-1237.
Filed January 28, 2002.
Appeal from the Iowa District Court for Scott County, BOBBI M. ALPERS, Judge.
The petitioner appeals from the trial court's rulings modifying his child support obligation, finding him in contempt of court, and denying his motion for new trial. AFFIRMED IN PART, WRIT ANNULLED, REVERSED IN PART, AND REMANDED.
Linda J. Messer of Pastrnak Law Firm, P.C., Davenport, for appellant.
Ralph H. Heninger of Heninger Heninger, P.C., Davenport, for appellee.
Kevin Kaufman, Assistant Attorney General, for appellee-State.
Cheryl Newport of Newport Newport, P.L.C., Davenport, for minor children.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Thomas P. Lunardi, Jr. appeals from the trial court's rulings modifying his child support obligation, finding him in contempt of court, and denying his motion for new trial. He contends the court erred in (1) calculating his child support obligation (2) finding him in contempt of court for being in arrears in his child support obligation, and (3) denying his motion for new trial. We affirm in part, reverse in part, annul the writ of certiorari, and remand to the district court.
I. BACKGROUND FACTS.
The trial court as factfinder could have found the following facts. The marriage of Thomas (Paul) and Christina Lunardi was dissolved by decree in 1997. The parties agreed Paul would have physical care of their two minor children, Alison, born September 12, 1992, and Jacob, born June 11, 1995. Christina was awarded liberal visitation, and she was ordered to pay child support in the amount of $25 per month.
Paul sought modification of Christina's child support obligation and payment of daycare costs in November 1998. That same month, Ashlyn, Paul's three-month-old daughter with his girlfriend, was seriously injured. In subsequent child in need of assistance proceedings involving Alison and Jacob the juvenile court found that Ashlyn had been injured by Paul, terminated Paul's physical care of Alison and Jacob and placed their physical care with Christina, and ordered Paul to pay child support in the amount of $48 per week.
Christina filed an application on December 17, 1999 seeking modification of Paul's child support and payment of a portion of daycare costs. She also filed an application for rule to show cause, claiming Paul was in arrears in his child support obligation. After a hearing, the trial court deviated from the child support guidelines and increased Paul's child support obligation for Alison and Jacob to $150 per week. The court also found him in contempt. It denied his motion for new trial. Paul appeals.
II. CHILD SUPPORT.
Paul contends the trial court erred in calculating his child support obligation. He argues that in deciding to deviate from the child support guidelines the court improperly considered financial assistance he had received from family members; erred in denying him a $200 per month deduction from net income for a prior support obligation for Nicole, his daughter from a relationship predating his marriage to Christina, and in denying him a $90 per month qualified additional dependent deduction (QADD) for Ashlyn; and erred in failing to determine the parties' respective net incomes and the amount of child support required by the guidelines before determining whether to deviate from the guidelines and, if so, by how much.
A petition to modify a decree of dissolution of marriage is triable in equity. Our review, therefore, is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 14(f)(7).
In determining child support, the trial court must first look to the child support guidelines. In re Marriage of Hilmo, 623 N.W.2d 809, 811 (Iowa 2001). The child support guidelines are strictly followed in determining a parent's child support obligation. State ex rel. Miles v. Minar, 540 N.W.2d 462, 464 (Iowa Ct. App. 1995). Application of the guidelines requires a determination of the parties' net monthly incomes. Hilmo, 623 N.W.2d at 811. Net income is gross income less certain allowable deductions. Id. The scheduled amount, however, is not unassailable, but may be increased or decreased if the court finds it necessary to provide for the children's needs or to effectuate justice between the parties under the special circumstances of the case. Miles, 540 N.W.2d at 464.
In its ruling the trial court found that members of Paul's extended family had been generous in paying toward the children's child care expenses and private school costs in the past, but they no longer did so. Those findings are fully supported by the record and we adopt them. However, in concluding that an upward deviation from the amount of child support determined by the child support guidelines was appropriate the trial court mentioned as factors it had considered only child care expense, private school and preschool expense, and counseling for the children by a therapist. It is thus not clear that, as alleged by Paul, the trial court considered financial support by his family in concluding deviation was appropriate. Because we reverse in part and remand for reasons stated below, and because this issue may arise in further proceedings, we will briefly address it.
Generally, financial assistance or support from sources other than a support obligor's income is not an appropriate consideration in determining a support obligation. See In re Marriage of Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991) (holding that possible support available to payor father from another person is not a consideration the district court must weigh in setting the child support award); see also In re Marriage of Will, 602 N.W.2d 202, 206 (Iowa Ct. App. 1999) (holding that income as defined by the guidelines does not include the income of a current spouse). Based on these holdings, together with the fact that Paul's extended family no longer provides the financial support it had previously provided, such financial support should not be a factor in determining whether a deviation from the guidelines is appropriate or the amount of any such deviation.
In denying Paul a deduction for a prior support obligation for Nicole and a QADD for Ashlyn, the trial court stated it had received no evidence of the prior child support order, stated it was uninformed as to whether that order preceded the support for Alison and Jacob, and stated the $90 QADD appeared to be for Ashlyn who did not reside with Paul. It denied Paul deductions for a $200 prior court-ordered support order obligation and a $90 QADD.
Paul filed an affidavit of financial status during the parties' dissolution of marriage proceeding. The affidavit appears in the court file that the trial court considered in the modification proceeding. It showed that he had an existing child support obligation of $200 per month. Paul's child support guidelines worksheet that was filed with the court in the pending modification action shows a prior court-ordered child support obligation of $200 per month, and claims a QADD of $90 per month. In her testimony during the modification hearing Christina acknowledged that Paul paid support of $200 per month for Nicole pursuant to a prior support order, and that Paul was responsible for supporting Ashlyn as well. There is no requirement that a support obligor's child for whom the obligor claims a QADD live with the obligor. The trial court erred in denying Paul the deductions in question. We reverse on this issue. Upon remand the trial court shall allow these deductions in determining Paul's net income.
The trial court found Paul's gross annual income from employment to be $18,720, and Christina's to be $19,281.60. These findings are fully supported by the record and we adopt them. However, the trial court did not determine the parties' net incomes, a necessary first step in determining the amount of child support called for by the guidelines and thus a necessary first step in determining whether modification was appropriate and, if so, the amount of the resulting child support obligation. See Hilmo, 623 N.W.2d at 811 (stating that the court must first look to the child support guidelines, whose application requires determination of the net monthly income of the parents); see also In re Marriage of Antisdel, 478 N.W.2d 864, 867-68 (Iowa Ct. App. 1991) (remanding to trial court to make necessary findings as to parties' net income where the trial court did not do so in a modification action). Because the trial court refused to allow Paul deductions he was entitled to, and did not determine the parties' net incomes, we reverse the trial court's order for child support and remand for further proceedings.
Because we reverse in part and remand we briefly address three additional matters that are arguably raised on appeal, need not be decided in view of our disposition, but may become issues on remand.
First, as correctly noted by the trial court, in determining Paul's net income he is entitled to a dependent health insurance deduction of $153.80 per month and not the $175.75 he claimed in his child support guidelines worksheet.
Second, in deciding to deviate from the child support guidelines the trial court clearly considered and relied on certain increased child care costs resulting from Paul's choice of the provider, the existence of expenses for private school for Alison and preschool for Jacob, and the expense of counseling for the children by the therapist. However, it made no findings as to the amount of the school and preschool expense and no finding as to the amount of the counseling expense. Such expenses may be small or large. Absent findings as to the amounts of these expenses we are unable on appeal to determine whether the trial court abused its discretion in deciding these expenses justified a deviation from the guidelines, and are therefore also unable to determine whether any particular amount of deviation is justified. Remand is thus also necessary for the trial court to address the matter of these expenses and after doing so determine if deviation from the guidelines is appropriate and, if so, by what amount.
The trial court's ruling discusses child care expenses of $150 per week. The record shows the child care expense in fact decreased to $120 per week in September 1999.
The existing record does not appear to reveal the amount of these expenses.
Third, Christina's actual child care expense while employed is an appropriate deduction in determining her net income for child support purposes. See Iowa Child Support Guidelines(July 1, 1995). Therefore, in determining whether expenses for Alison's and Jacob's child care justify deviation from the guidelines, consideration may be given at most only to the amount by which such expenses are increased by Paul's choice of a provider. Further, such increased expenses may be considered only to the extent that the increased amount is not taken as a deduction in arriving at Christina's net income.
Because the district court refused to allow Paul deductions to which he was entitled, failed to determine the parties' net incomes, and made no findings as to the amounts of certain expenses it found to justify deviation from the child support guidelines, we reverse its child support award and remand for further proceedings consistent with this opinion. The trial court must make necessary findings based on the existing record, together with such additional evidence as it finds necessary, and then decide whether deviation from the guidelines is warranted and, if so, by what amount. We express no view on the question of whether deviation is warranted.
III. CONTEMPT.
Paul claims the district court erred in finding him in contempt of court. Our review is at law. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). In a certiorari action, we may examine only the jurisdiction of the district court and the legality of its actions. French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996). Illegality exists when the court's factual findings lack substantial evidentiary support, or when the court has not properly applied the law. Amro, 429 N.W.2d at 138.
We note that a contempt finding is not appealable as a matter of right. Iowa Code § 665.11 (1999). Instead, such finding must be challenged by a petition for writ of certiorari. Id. Pursuant to Iowa Rule of Appellate Procedure 304, we consider Paul's notice of appeal a petition for writ of certiorari, and we grant his petition.
On review of a contempt ruling, this court must determine whether substantial evidence supports the judgment of contempt. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993). Substantial evidence is such evidence as could convince a rational trier of fact that the alleged contemner is guilty of contempt beyond a reasonable doubt. Id. at 744-45. The party requesting the contempt finding has the burden of proving that the contemner (1) had a duty to obey a court order, and (2) willfully failed to perform that duty. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). Once a violation of a court order has been shown, the burden shifts to the alleged contemner to produce evidence suggesting that the violation was not willful. In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995). Nevertheless, the contemnee retains the burden to prove willfulness beyond a reasonable doubt. Id.
Willful disobedience supporting a contempt finding
requires evidence of conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the contemner had the right or not.Amro, 429 N.W.2d at 140 (quoting Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980)). There are two ways in which the contemner may show that a failure to comply with a court order was not willful: (1) the order was indefinite; or (2) the contemner was unable to perform the act ordered. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996).
We find substantial evidence that Paul is guilty of contempt beyond a reasonable doubt. Christina has proven that Paul had a duty to obey the support order. The order was not indefinite. Paul claimed confusion as to the amount due, but not to the fact that he had been in arrears. We note that the amount of his arrearage was at one point greater than the amount stipulated at the contempt hearing. Furthermore, Paul has presented very little if any evidence that his conduct was not willful. The record indicates he was off work for a time, but it does not show that he was unable to pay during the time he was off. Further, even assuming he was unable to pay while off work, the record does not show he was unable to cure any arrearage before the contempt proceeding was initiated. We annul the writ.
IV. MOTION FOR NEW TRIAL.
Paul filed a motion for new trial, contending in relevant part that the court erred by allowing Cheryl Newport to appear as guardian ad litem rather than limiting her to input as an attorney, in violation of Iowa Code section 598.12 (1999). The district court denied his motion. On appeal, he contends the court erred in appointing Newport guardian ad litem and in taking judicial notice of the juvenile court files involving this family and the court file in this case.
Our scope of review of a ruling on a motion for new trial depends on the grounds asserted in the motion. Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999). To the extent the motion is based on a discretionary ground, we review it for abuse of discretion. Id. But if the motion is based on a legal question, our review is on error. Id. In discretionary matters, the trial court is accorded broad but not unlimited discretion. Id. The parties agree that we review the trial court's ruling denying Paul's motion for new trial for abuse of discretion.
The trial court specifically appointed Newport as attorney, and not as guardian ad litem, before the hearing in this case. Iowa Code § 598.12 (court may appoint an attorney to represent interests of minor children). That she was later referred to as the guardian ad litem does not change her status as attorney in this case. Furthermore, Newport did not participate in the hearing, as she was required in another courtroom. We find Paul's argument in this regard without merit.
The trial court announced it was going to take judicial notice of the juvenile court files involving this family and the court file in this case. Paul did not object at that time, and he did not challenge the court's action until appeal. He cannot now claim error. Hamilton v. O'Donnell, 367 N.W.2d 293, 295 (Iowa Ct. App. 1985) (stating that generally when a party makes no objection to the reception of evidence at trial, the matter will not be reviewed on appeal). Thus, he has not preserved error on this issue. Although not necessary to our decision on this point, we also note he did not raise this ground in his motion for new trial. We affirm the denial of Paul's motion for new trial.
V. CONCLUSION.
We conclude that the trial court erred in calculating Paul's child support obligation, and we reverse and remand on this issue. We find no error in the trial court's finding that Paul was in contempt, and thus we annul the writ of certiorari. Finally, we find that Newport was appointed as attorney in this matter, and Paul did not preserve error on his argument that the trial court abused its discretion in taking judicial notice of court files. The trial court did not abuse its discretion in denying Paul's motion for new trial.