Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.
Angela Thoms appeals from the physical care and child support provisions of the modification of the decree of dissolution of her marriage to David Thoms.
Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellant.
Aimee L. Lowe of Telpner, Peterson, Smith, Ruesch, Thomas & Simpson, L.L.P., Council Bluffs, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
Angela Thoms appeals from the physical care and child support provisions of the modification of the decree of dissolution of her marriage to David Thoms. She argues the district court erred in giving David physical care of the children, in calculating her income for child support purposes, and in declining her request for attorney fees. We affirm, finding the court properly determined a substantial change in circumstances occurred and that David would provide superior care, the court properly used Angela's earning potential instead of actual income, and the court did not err in declining Angela's request for attorney fees.
I. Facts and Proceedings.
Angela and David Thoms were married in 1993; the marriage was dissolved in 2006. The parties have three children. The 2006 dissolution decree, in accordance with the stipulation of the parties, awarded Angela and David joint legal custody and joint physical care of the children.
David has been self-employed as a construction worker and remodeler of homes for sixteen years. At the time of the dissolution, Angela was employed as a certified nursing assistant making $28, 000 a year. In April 2008, Angela injured her ankle at work and was unable to exercise her joint physical care. She was let go from her employment a few months later as the injury prevented her from working. David filed for modification of the decree in September 2008, requesting alteration of the child support provision of the original decree due to his increased care of the children and requesting physical care of the children. The court reduced David's child support payments according to the parties' agreement and did not modify the physical care arrangement. Because the parties reached an agreement on the financial issues, and apparently agreed not to modify the physical care issues; no trial was held regarding the physical care arrangement.
Angela remained unemployed and declined to exercise her parenting time through 2009. In 2010 she underwent cancer surgery and continued not to take advantage of her joint physical care that year. That same year she did begin to work at a bar three to four nights a week, earning somewhere between $18, 200 and $20, 800 a year.
In January 2011, she left that employment and moved to another bar, working twice a week. At this point, Angela reports she began exercising her joint physical care again, taking the children three days one week and four days the next. David's calendar, in contrast, shows she had the children approximately three days a month from June 2011 to November 2011. After that time, the number of her visits as chronicled in David's log increased, but not by much. Angela admits David had actual physical care of the children (despite the joint physical care provision of the dissolution decree) for more than three years. The children's teachers recognize David as the parent to contact regarding the children; Angela has very limited interaction with the teachers.
Angela received her certificate in phlebotomy in May of 2012. That same month, Angela filed for modification of the decree. After the petition was filed, both parties agree she exercised regular visitation. She requested modification of the child support provisions and that the children not be exposed to a certain relative. Angela also filed an application for a rule to show cause regarding payments owed by David for back taxes. David filed a counterclaim requesting physical care of the children. Angela filed an application for temporary hearing, requesting a court-ordered visitation schedule, alleging a denial of visitation by David since they had never followed the 2006 decree terms for custody and visitation. This application was denied. Trial was held in December of 2012.
Angela was unemployed at the time of trial; she planned on an increase in income in March after obtaining clinical training in phlebotomy. After that, she expected to make between eleven and thirteen dollars an hour. She also had an offer at the time of trial for ten dollars an hour for twelve hours a week as a part-time nursing assistant; she had not applied to full-time jobs, stating she ...