Iowa Divorce and Family Law

"Offensive Language Alone" Not Domestic Abuse

The decision of In re Marriage of Ihns provides some much needed clarification about what types of conduct constitute domestic abuse under Iowa Code Chapter 236. Like many domestic abuse cases, the evidence is often contradictory and of the “he said, she said” variety with no uninvolved, objective witnesses. The ultimate decision often rests on the credibility of the parties’ determination made by the trial court.

Of note beyond the facts of this particular case is the following aspect of the court’s decision, which will no doubt engender considerable discussion about its meaning and scope:

One final matter deserves note. [Husband]’s use of offensive language toward his wife (whether or not in front of the children) may be worthy of condemnation. Additionally, such language is a common precursor to domestic abuse. Offensive language alone, however, does not give rise to a claim for relief under chapter 236, absent evidence of an assault as defined in section 708.1. Similarly, a claim of “fear,” standing alone and absent an assault, does not give rise to a claim under chapter 236. Remedies for such conduct may be available; however, they do not find their bases in chapter 236.

Goodman II - Yet Another College Support Decision

In a second trip to the appellate level, the Iowa Court of Appeals affirmed the district court's ruling in In re Marriage of Goodman concerning allocation of post-secondary education expenses and declined a party’s “invitation to sua sponte review” of a prior Iowa Supreme Court decision involving the same issue and the same parties. In re Marriage of Goodman was first considered by the Iowa Supreme Court in 2004. In re Marriage of Goodman, 690 N.W.2d 279 (Iowa 2004). In that decision, the court rejected the parent’s claim that all three children’s college expenses should be treated equally. In today’s Court of Appeals decision, the court again rejected a parent’s claim that each parent should pay 1/2 of a child’s college expenses under the prior agreement that was rejected in Goodman I.

Of some interest is the court’s comment at Footnote 2 rejecting a “best interests” exception to the statutory 1/3 cost-sharing limitation. The decision limits the “best interests” analysis solely “within the context of whether a conditional postsecondary education subsidy stipulation should be enforced” per the decision of In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003).

Determination of Self-Employed, S-Corp Shareholder Income

Iowa Ct. R. 9.5 lists the allowable items that may be deducted in determining net monthly income for child support purposes. The decision in In re Marriage of Allebach illustrates application of these items in a situation where the payor is self-employed. In Allebach, the payor presented evidence of his cash flow, which included two deductions for principal and interest payments related to the purchase of corporate stock. The appellate court addressed the issue as follows:

While we find the record generally supports Richard’s position, we find the CPA’s assertion of cash flow to be artificially low. This is because two of the deductions relied on by the CPA firm were a $41,685.00 annual principal payment and a $6,315.00 annual interest payment on an installment contract to Daba for the purchase of stock. Although Richard may be obligated under this contract, we do not consider it as a deduction in arriving at net income. See generally Iowa Ct. R. 9.5 (providing a list of allowable deductions for determining net monthly income in calculating child support). With these amounts added back to income, we find Richard’s annual net income to be $161,913.00 or net monthly income of just under $13,500.00.

Of note is that this appeal was from entry of a temporary support order, which is appealable of right, unlike temporary custody orders which may only be appealed by a grant of interlocutory review.

Voluntary Reduction in Income Not Basis for Deviation from Guidelines

The decision of In re Marriage of Opat illustrates the rule that not every voluntary reduction in income is grounds for deviation from the child support guidelines. In this case, the Iowa Court of Appeals affirmed the trial court's finding that a reduction in income from $58,000 with full benefits, including family health insurance at nominal cost, to $45,000 with no health insurance, was not done with the intent of reducing the payor's child support obligation. The evidence indicated that the parent/employee, a high-voltage lineman, was suffering significant distress because of the dissolution and that this caused him and his supervisor to have safety concerns given the nature of his occupation.

Transfer of Custody as Discovery Sanction

In what appears to be a case of first impression in Iowa, the Iowa Court of Appeals reversed the trial court's establishment of primary physical care as a discovery sanction for a party's failure to answer written discovery. The district court imposed the sanction: 1) without establishing a factual basis, and 2) without establishing that the custodial determination was in the child's best interests.

However, the district court should not have proceeded to established primary care without establishing a factual basis for the finding and a determination it was in [the child]’s interest. A child does not lose his or her rights because a parent fails to comply with court rules. See Flynn v. May, 852 A.2d 963, 975 (Md. Ct. Spec. App. 2004). We conclude the court abused its discretion in granting [petitioner] physical care of [the child] upon entry of the default judgment. There was no available evidence to support the custody change. Following the entry of default judgment, the court should not have determined custody without evidence to warrant the judgment. See Iowa R. Civ. P. 1.973(2). In this case, the court should have entertained evidence relating to the best interest of the child." Fenton v. Webb, No. 04-1138.

Joint Physical Care is a "Viable Option"

The Court of Appeals recently issued its decision in the case of In re Marriage of Munger. Aside from footnote dicta in an earlier 2005 case, this appears to be the first appellate case applying the July 1, 2004, amendment concerning joint physical care:

Joint physical care, although once disfavored in our case law, see In re Marriage of Roberts, 545 N.W.2d 342, 343 (Iowa Ct. App. 1996), has been sanctioned by our legislature as a viable option under our dissolution statute. Iowa Code § 598.41(5)

The decision gives little guidance as to the specific legal effect of the statutory amendments (i.e., is there a preference for joint physical care, a preference, a presumption, or nothing it all?). Nor does the decision explain what is required of the trial court if it finds joint physical care not to be in the children's best interests. However, the decision does give practical guidance about what level of communication, cooperation and planning the court might require in order to approve joint physical care requests:

In this particular situation, a joint physical care arrangement most effectively serves the best interests of [the children]. Both [parents] possess the attributes of effective and capable parents, willing to engage each other in the concerns affecting the children. Moreover, such an arrangement provides the children with the maximum continuing contact with each parent and allows them to maintain certain continuities in their life. Our legislature has deemed that joint physical care may be, in certain circumstances, a viable option. We find this to be one of those cases.

Recent Same-Sex Child Custody Cases - California Supreme Court

The California Supreme Court has ruled in 3 same-sex custody cases involving parental rights/responsibilities:

In Elisa B. v Emily B. the Court held that there could be 2 mothers under the principle that a parent who accepts the non-biological child into his/her home can be liable for child support. Note that this was a state child support action which often results in an outcome that protects the public treasury.

In Kristine H. v. Lisa R. the court refused to let a biological mom who stipulated to a pre-birth parentage judgment to collaterally attack it.

In K.M. v E.G. the Court ruled that where a woman donates her egg to her partner and they raise the child, that the child has two mothers, regardless of the fact that the donor mother signed a consent/waiver of rights at the hospital, enforced under the California insemination statute. The waiver was found to be irrelevant.

In each case, the end result is that the children have two legal mothers. You can find the cases at the California Supreme Court's website. If you're really bored, you can also watch the arguments using the same Court web site.