IN RE THE MARRIAGE OF LEE T. BAILEY AND AMIE JO BAILEY Upon the Petition of LEE T. BAILEY, Petitioner-Appellee, And Concerning AMIE JO BAILEY, n/k/a AMIE JO RUSSELL Respondent-Appellant.
from the Iowa District Court for Audubon County, Susan L.
Russell (formerly Bailey) appeals from the district
court's modification of the decree dissolving her
marriage to Lee Bailey.
Christine Sand of Wild, Baxter & Sand, PC, Guthrie
Center, for appellant.
R. Mathahs of Mathahs Law Office, Marengo, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Russell (formerly Bailey) appeals from the district
court's orders modifying the decree dissolving her
marriage to Lee Bailey, arguing the district court erred in
several respects. First, she contends the court improperly
modified the physical-care placement of the parties'
minor children from her to Lee, asserting Lee failed to
establish that there was a substantial change in
circumstances and that he was the superior caregiver to
warrant modification. Second, she maintains the court
improperly imputed only minimum-wage income to Lee for
purposes of calculating her child-support obligation, given
the court's finding that Lee had voluntarily reduced his
income. Third, Amie asserts the court improperly ordered that
her child support obligation be effective retroactively.
Fourth and finally, Amie argues the court improperly failed
to hold Lee in contempt for his failure to pay her child
support. Upon our review, we affirm as modified and remand.
Background Facts and Proceedings.
and Lee married in 2001 and divorced in 2008. They have three
children, two of which are minors, though one will turn
eighteen this year. The decree placed the children in both
parents' joint legal custody, with Amie having
"permanent primary physical care" of the children
and with Lee having "reasonable and liberal"
visitation. Lee's 2008 affidavit of financial status
reported he was self-employed grossing $800 per week (no
deductions are shown),  and he was ordered to pay monthly child
support of $690.
than a year after the parties divorced, Amie moved from Iowa
with their children. Lee subsequently filed a petition for
modification of the decree, requesting he be granted physical
care of the children. He also sought that Amie be cited for
contempt for not complying with the visitation provisions of
the parties' decree. The court in December 2009 found
Amie in contempt but permitted Amie to purge the contempt by
complying with the court's order granting Lee certain
scheduled visits with the children. Amie complied and the
contempt was dismissed.
on Lee's 2009 modification petition was held in 2010.
Thereafter, the court entered its decree of modification,
making modifications to the parties' decree but leaving
the children in Amie's physical care. Although the court
found Amie had lived a "nomadic lifestyle" after
moving from Iowa, the court found Amie's situation had
stabilized after she moved to North Carolina. The court
Amie claims to see the past error of her ways. Visitation has
gone much better since the contempt was purged.
Lee wishes to continue to rehash the denial of his telephone
visits with the children. His ill will is understandable but
offers little assistance to the children's best interest.
Lee has likewise moved several times since the decree but all
within the State of Iowa. . . .
Both Amie and Lee are strong-willed and can only view a
situation from their respective vantage or angle. Little or
no communication exists between the parties. In dealing with
the children, Lee's strength appears to be outdoor
activities and horses. Amie's strength appears to be in
providing the children academic and religious programs. Both
need to work on their respective skills of compromise and
communication with each other. The children's wellbeing
. . . .
This court specifically cautions [Amie] of the following: (a)
not to return to her nomadic lifestyle; (b) to encourage
Lee's visitation with the children; and (c) to schedule
medical appointments and religious activities not to
interfere with Lee's custodial periods. The court
specifically cautions Lee not to undercut the children's
needs by promoting his own desires. The court cautions both
parties to improve their communication with each other.
Lee struggled to pay Amie child support as decreed. It
appears he started getting behind in his payments by October
2011 and was approximately $5000 in arrears by September
2012. In March 2013, Lee was in $11, 250 in arrears. Amie and
Lee entered into a joint stipulation so that Lee could get
caught up on the amount owed, and the district court approved
the stipulation. Lee agreed he was "in contempt of court
for willfully violating his court ordered support obligation
to the minor children of this matter." A year later, Lee
had complied with the terms of the approved stipulation and
purged himself of the contempt finding.
end of 2013, Lee sought to reduce his child support
obligation by requesting a review and adjustment from the
Child Support Recovery Unit (CSRU). The financial-statement
form Lee signed in January 2014 stated Lee was employed
full-time as a truck driver. Though the form had a place to
fill in "[t]he amount of [his] last paycheck," no
information was provided. The CSRU's review determined
Lee's gross monthly income at that time was $3490.68,
and, after adjustments, his net income was $2703.63 per
month. After determining Amie's income, the
CSRU calculated Lee's support obligation had actually
increased under the child support guidelines-from $690 to
$943 per month-based upon his and Amie's incomes. Lee
then asked to withdraw his request to review and adjust his
child support. Amie requested the CSRU to continue the
review. Ultimately, the matter was set for hearing. By the
time of the July 2014 hearing, the CSRU revised its
calculations increasing Lee's recommended child support
to $1038 per month. The court ordered Lee's obligation be
increased to $1038 per month for the three minor children,
then reduced to $897 after the eldest reached majority, then
$637 after the middle child reached majority.
came to a head around Christmas 2015. Lee was to have
Christmas visitation with the children, and he bought airline
tickets to fly them to Iowa. Amie did not send the children,
and Lee ultimately filed an application to show cause. Not
buying Amie's explanation, the court found Amie in
contempt. The court allowed Amie to purge the contempt by
complying with its order, which included Amie paying for the
cost of the tickets plus new tickets for the children to
visit Lee. Amie complied, and the court purged her contempt
in June 2016.
October 2016, Lee again sought to reduce his child support
obligation through the CSRU. Lee's financial-statement
form signed in January 2017 stated he was self-employed, and
on the blank line to indicate "Job Title or
Occupation," Lee wrote, "ATV Repair-just setting up
no income." Based upon Lee having no income, the CSRU
determined under the child-support guidelines, Lee's
support obligation was to be $50 per month.
March 2017, Amie challenged the CSRU's contemplated
reduction of child support, based upon Lee's voluntary
reduction of his income. Lee then filed a petition for
modification of the decree, requesting the two minor children
be placed in his care and Amie pay him child support. He
subsequently filed an affidavit of financial status stating
his income was "$0.00 per month." In July 2017,
Amie filed an application for show cause stating Lee had
failed to meet his child support obligations and was $4500 in
the matters pending between the parties were tried to the
court on August 16, 2017. With the consent of the parties,
the judge visited with the parties' two minor children
outside of the presence of the parties and their
counsel. At the end of the trial, the court issued
an initial ruling from the bench.
Regarding the child support issue, I find there's been a
voluntary reduction in income. Pretty substantial. I think
that I'm not going to touch the child support as far as
the numbers that have been submitted. . . . I don't find
contempt. Even by Amie's own testimony, she did not find
that it was on purpose, that [Lee was] trying to pay what you
could while building up a new business. I do find that the
reduction in income was voluntary, a pretty significant
voluntary reduction. For purposes of the child support
calculation I'm going to direct the [CSRU] attorney to
recalculate child support assessing the minimum wage
full-time status for you. I'm also going to not make that
retroactive. It will be effective upon the filing of the
decree. So the old amount remains in place until a
regard to the contempt issue concerning Lee's child
support arrearage, the court ruled,
What I'll do is continue the rule to show cause to give
him an opportunity to get current. I don't find you have
willfully disobeyed; but you are in violation of court order.
You do have an arrearage. Based on my finding, you
voluntarily reduced your income and not real sympathetic to
that argument. But I do not find that it was willful; but you
are not current. But you've tried hard to get current as
of the 1st of the year. So, ...