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In re Marriage of Johnson

Court of Appeal of Iowa

November 6, 2013

IN RE THE MARRIAGE OF TROY SCOTT JOHNSON AND KRISTY LYNN JOHNSON Upon the Petition of TROY SCOTT JOHNSON, Petitioner-Appellant, And Concerning KRISTY LYNN JOHNSON, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

Troy Johnson appeals from the child custody and economic provisions of the decree dissolving his marriage to Kristy Johnson.

Eric Borseth of Borseth Law Office, Altoona, for appellant.

Todd E. Babich and Kodi A. Brotherson of Babich Goldman, P.C., Des Moines, for appellee.

Considered by Potterfield, P.J., Bower, J., and Huitink, S.J. [*]

HUITINK, S.J.

Troy Johnson appeals from the child custody and economic provisions of the decree dissolving his marriage to Kristy Johnson. He contends a joint physical care arrangement is in the child's best interests. He also contends he should be awarded spousal support and a lump-sum social security dependent payment. Finally, he contends the trial court abused its discretion in declining to award him his trial attorney fees.

We find granting Kristy physical care is in the child's best interests. We further find a spousal support award is not supported under the facts before us. We decline to divide the lump-sum dependent disability payment between the parties. Finding no abuse of discretion, we affirm the district court's denial of an attorney fee award to Troy, and we decline to award either party appellate attorney fees.

I. Background Facts and Proceedings.

Troy and Kristy were married in September 2004 and have one child, born in 2008. Troy petitioned to dissolve the marriage in May 2011, and the case was tried in October 2012.

Troy was thirty-one years old at the time of trial. He has a bachelor's degree in marketing and worked as a regional account manager, earning approximately $45, 000 per year. But in December 2009, Troy herniated two discs in his back and could no longer work. He underwent surgery in March 2010 but still reports experiencing pain. Troy receives monthly social security disability benefits after an October 3, 2011 decision of the Social Security Administration's Office of Disability Adjudication and Review found he is limited "to sitting one hour, standing one hour, and walking one hour in an eight-hour workday" and "is limited to lifting less than ten pounds and could never bend or stoop." The Social Security Administration also paid Troy a $16, 044 lump-sum payment for benefits owed from June 2010 through September 2011. It made a $12, 756 lump-sum payment to the child, which the court ordered be placed in a trust account until the dissolution was finalized.

At the time of trial, Troy was studying digital forensics at Des Moines Area Community College. He was attending one class, two days per week. He expects to receive his certification in two years. With this education, Troy hopes he will no longer need to collect social security disability benefits.

Kristy was thirty-four years old at the time of trial. She has a master's degree in mental health counseling. Kristy is a licensed mental health counselor, nationally certified counselor, and certified drug and alcohol counselor. She works as a school-based mental health therapist and earned $47, 039.98 per year at the time of trial.

After the parties separated, they began alternating physical care of their child. At first, the parties alternated care of the child every few days. In August 2011, a temporary custody order set forth a schedule in which Kristy had the child in her care four days and Troy had the child three days during one week, with the schedule reversed the following week. The parties experienced difficulties during the custody exchanges due to animosity between them. As a result, a child custody evaluation determined "[a]n equally shared parenting plan is not recommended, " noting the child "has not thrived thus far under such a plan and the ...


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