Appeal from the Iowa District Court for Union County, Richard B. Clogg, District Associate Judge.
The opinion of the court was delivered by: Potterfield, J.
Brian Bolinger appeals from the district court's ruling setting child support in an amount that deviates from the child support guidelines. Jenny Bolinger cross-appeals from the denial of her application to modify the custody provisions of the parties' dissolution decree. AFFIRMED IN PART AND REMANDED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
In this action to modify the parties' dissolution decree, Brian Bolinger appeals from the district court's ruling setting child support in an amount that deviates from the child support guidelines. Jenny Bolinger cross-appeals from the denial of her application to modify the custody provisions and raises other issues. The district court did not err in failing to modify the physical care of the children. However, the court made inconsistent rulings in ordering equal parenting time, but deviating from the child support guidelines on the ground that the "parties' joint physical custody arrangement is not equal and results in the children residing with Jenny more than with Brian." We remand for recalculation of child support.
I. Background Facts and Proceedings.
In October 2005, the district court entered a dissolution decree incorporating the parties' stipulations as to child custody and support. The decree provided that Brian and Jenny "shall each share jointly the legal custody and physical care" of their two minor children. Brian was ordered to pay $137.50 per week to Jenny for child support.
On October 25, 2011, Jenny filed an application to modify the decree concerning support, visitation, and secondary education expenses. She alleged there had been a substantial change of circumstances in that "the parties agreed upon alteration of the shared physical care schedule which the parties have been following." Brian answered, seeking additional time with the children, and in a counterclaim, asserting that even though the parties' incomes had increased, the child support originally ordered was higher than called for by application of the guidelines.
A hearing was held. One witness stated she had "never seen a more civil divorce than what Brian and Jenny had." Both parents were involved in their children's lives, shared similar parenting styles, communicated well together, and were flexible in the children's care. When the parties were first divorced, the children generally stayed overnight with Jenny and spent every other weekend with Brian. Brian would stop by to see the children after he got off work to "play or ride bikes or whatever" quite often. In 2009, their son began to spend additional evenings during the week with Brian one-on-one, on the advice of a counselor. Thereafter, the daughter, too, spent one evening each week with her father, one-on-one. The children have their own rooms at each parent's home. Brian drives the children to school three days per week.
Brian described the parenting schedule at the time of the hearing: Tuesday and Thursday nights, the son was with Brian. Wednesday night the daughter was with Brian. Every other Friday and Saturday, both children stayed with him overnight. Brian asked that the children be allowed to spend Sunday nights with him as well, but Jenny refused saying the children should be at "home in their own beds."
The district court stated the "current dispute involves whether the children should be allowed to spend Sunday overnight with Brian on the weekends they are at his home. Jenny wants them to come home Sunday evening. Brian wants them to sleep at his home until Monday morning." The court refused to modify the physical care provisions of the decree finding that Jenny had not met her burden to prove a substantial change of circumstances to justify a change in the joint physical care provision of the decree. The court also ordered, "To the extent the parties cannot agree to a parenting time schedule, the following schedule will be implemented":
Sunday Monday Tuesday Wednesday Thursday Friday Saturday Week 1 J J B/J B/J B B B Week 2 B J B/J B/J B J J
In accordance with the above schedule, Petitioner shall exercise parenting time with both children every Monday and every other Friday, Saturday, and Sunday. Respondent shall exercise parenting time with both children every Thursday and every other Friday, Saturday, and Sunday. Each Tuesday, Petitioner shall exercise parenting time with [the daughter] while Respondent exercise parenting times with [the son], and each Wednesday Petitioner shall exercise parenting time with [the son] while Respondent exercises parenting time with [the daughter], in order to allow individual time for each child with Petitioner and Respondent.*fn1
Citing Iowa Code section 598.21C(2)(a) (2011), the court did modify the support provisions. The court found that pursuant to the child support guidelines, under a joint physical care scenario and using the offset approach, Brian would pay Jenny $355.40 per month for ...