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In Re the Marriage of Danette Lien Kennedy and Michael Stephen Kennedy

April 24, 2013

IN RE THE MARRIAGE OF DANETTE LIEN KENNEDY AND MICHAEL STEPHEN KENNEDY UPON THE PETITION OF DANETTE LIEN KENNEDY, PETITIONER-APPELLANT/CROSS-APPELLEE, AND CONCERNING MICHAEL STEPHEN KENNEDY, RESPONDENT-APPELLEE/CROSS-APPELLANT.


Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, Judge.

The opinion of the court was delivered by: Danilson, J.

Danette Kennedy appeals from the district court's ruling denying her application to modify physical care of the parties' children and granting Michael Kennedy's counterclaim requesting modification of the child support order. Michael cross-appeals from the district court's order denying an award of attorney fees. AFFIRMED ON BOTH APPEALS.

Heard by Doyle, P.J., and Danilson and Bower, JJ.

We consider whether the district court properly denied Danette Kennedy's application to modify decree regarding the physical care of the parties' children, and properly granted Michael Kennedy's counterclaim requesting a modification of the child support order. The parties presently have joint custody and joint physical care of their two minor children. On cross-appeal, we consider whether the court properly denied an award of attorney fees. Michael also seeks an award of appellate attorney fees. We affirm. We conclude Danette has not proven a substantial change of circumstances warranting a modification of physical care. The modification of child support was supported by Danette's substantial increase in income. We also conclude the district court did not abuse its discretion in failing to award Michael trial attorney fees, but we grant Michael's request for appellate attorney fees.

I. Background Facts and Proceedings.

Danette and Michael were married in 1993 in Cedar Rapids, Iowa. The

parties have two minor children, born in April 1999 and September 2003. The district court entered a dissolution decree on June 4, 2008. Pursuant to the decree the parties were awarded joint legal custody and joint physical care. The court awarded no child support based on the parties' comparable incomes (approximately $60,000 each).

At the time of the dissolution Danette was employed by Gorilla Marketing, Inc. Gorilla remains an active organization but has not been profitable. Danette is Gorilla's sole shareholder and president. Prior to the dissolution, Gorilla acquired a $750,000 business loan from AmerUS Annuity Group. When the parties' marriage was dissolved, they agreed Danette would be solely responsible for the loan.

AmerUS was later purchased by Aviva USA Corporation. In 2009, Danette accepted employment with Aviva as the vice president of field training and development. When Danette began working for Aviva, they agreed to an amended and restated promissory note setting forth new terms of repayment of the Gorilla loan via a direct payroll deduction. Danette reports a portion of these amounts as business losses to herself for tax purposes. She claimed losses of $41,805 in 2010 and $45,843 in 2011.

Danette's income has increased in her new position at Aviva. She currently earns $148,526 plus bonuses. Michael's salary has not changed since the dissolution decree was entered.

On June 14, 2011, Danette filed an application to modify the dissolution decree, asking for physical care of the parties' two children.*fn1 She highlighted her role as the de facto primary care parent and communication breakdowns with Michael as substantial and material changes warranting modification of the joint physical care arrangement. Michael filed a counterclaim for child support modification.

The district court denied Danette's application for modification of the physical care arrangement and granted Michael's request to modify child support. The court ordered Danette to pay $657.25 per month to Michael in child support, to be reduced to $463.63 when support is payable for only one child. Danette appeals. Michael cross-appeals the court's denial of his request of trial attorney fees

II. Scope and Standards of Review.

Actions to modify child custody or physical care are tried in equity and reviewed de novo. Iowa R. App. P. 6.907; In re Marriage of Hynick, 727 N.W.2d 575, 577 (Iowa 2007). We give weight to the trial court's findings of fact but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Prior cases have little precedential value, as decisions regarding custody or physical care are based on ...


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