IN RE THE MARRIAGE OF SCOTT J. KRUEGER AND ELYSE S. KRUEGER Upon the Petition of SCOTT J. KRUEGER, Petitioner-Appellant/Cross-Appellee, And Concerning ELYSE S. KRUEGER, Respondent-Appellee/Cross-Appellant.
from the Iowa District Court for Hardin County, James A.
father appeals from the district court's decree of
dissolution of marriage, which awarded physical care of their
children to the mother and visitation time to him. The mother
cross-appeals the calculation of child support.
AFFIRMED AS MODIFIED AND REMANDED.
M. O'Donohoe of Elwood, O'Donohoe, Braun & White,
L.L.P., Charles City, for appellant.
Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin,
L.L.P., Boone, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
Krueger appeals from the decree dissolving his marriage to
Elyse Krueger. He argues the district court erred in
declining to grant joint physical care and in establishing
the visitation schedule. Elyse requests appellate attorney
fees, and she cross-appeals, claiming the district court
erred in calculating child support. We find the district
court's factual determinations are supported by the
record, and we affirm the physical care award and the
visitation schedule. We also find Elyse is entitled to
partial appellate attorney fees, and we agree with her on the
child support calculation. Accordingly, we affirm as modified
and remand for further proceedings.
and Elyse Krueger married in March 2009. The marriage
produced two children. On November 16, 2016, Scott filed the
petition for dissolution of marriage. Trial was held on
August 22 and 23, 2017. On October 3, the district court
entered the decree of dissolution, which accepted most of the
parties' stipulations, granted joint legal custody of the
children, placed physical custody of the children with Elyse,
established a schedule for visitation with Scott, and ordered
review dissolution cases de novo, giving "weight to the
trial court's factual findings, especially with respect
to the credibility of the witnesses." In re Marriage
of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Questions of
physical care are based upon the best interest of the child.
In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa
claims the district court should have granted the parties
joint physical care of the children. The statutory factors in
Iowa Code section 598.41(3) (2016) "as well as other
facts and circumstances are relevant in determining whether
joint physical care is in the best interest of the
child." Id. After rejecting joint physical care
as not being in the best interests of the children, the
district court granted physical care to Elyse. It noted the
strengths of each party, and it was "convinced that each
parent loves their children and each parent is capable of
providing the necessary nurturing for the children." The
court also noted the weaknesses of each party. "Scott
has demonstrated that he has a temper, that he can be
controlling and that he does not consider Elyse to be a
co-equal parenting authority." Elyse has "developed
some history of being a vindictive parent who is willing to
withhold visitation from the other parent as punishment for
transgressions." The district court was in the best
position to see and hear the parties first-hand, and to note
each party's attitude, compassion, tone of voice, and
other qualities. See Witten, 672 N.W.2d at 773.
After reviewing the entire record, including the testimony of
all witnesses, we are convinced the district court properly
considered all factors in making physical care and visitation
decisions in the best interest of the children. We affirm the
decree regarding physical care and visitation without further
opinion. Iowa Ct. R. 21.26(1)(a), (b), (d), (e).
child support, Elyse argues, and Scott agrees, the district
court improperly deducted Scott's IPERS contributions
when calculating his child support obligation. See
Iowa Ct. R. 9.5(3) (allowing a deduction for "mandatory
pension deductions not to exceed the current Social Security
and Medicare tax rate for employees"). We agree with the
parties, and we remand to the district court for the sole
purpose of recalculating child support, using the income
figures already submitted, without the deduction of
Scott's IPERS contributions.
Elyse requests appellate attorney fees. Appellate attorney
fees are within the discretion of the appellate court. In
re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996).
"In determining whether to award appellate attorney
fees, we consider the needs of the party making the request,
the ability of the other party to pay, and whether the party
making the request was obligated to defend the decision of
the trial court on appeal." In re Marriage of
Hoffman, 891 N.W.2d 849, 852 (Iowa Ct. App. 2016)
(quoting In re Marriage of Kurtt, 561 N.W.2d 385,
389 (Iowa Ct. App. 1997)). The district court considered
Scott's significantly higher income and ordered him to
pay $2, 500 of her attorney fees. Due to Scott's greater
income and the fact Elyse mostly prevailed on appeal, we
order Scott to pay $2, 500 of Elyse's appellate attorney
fees as well.