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In re Marriage of Bailey

Court of Appeals of Iowa

September 12, 2018

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.

          Appeal from the Iowa District Court for Audubon County, Susan L. Christiansen, Judge.

         Amie Jo 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.

          Dennis R. Mathahs of Mathahs Law Office, Marengo, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         Amie Jo 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.

         I. Background Facts and Proceedings.

         Amie 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), [1] and he was ordered to pay monthly child support of $690.

         Less 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.

         A trial 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 explained:

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 demands same.
. . . .
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.

         Thereafter, 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.

         At the 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.[2] 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.[3] 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.

         Things 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.

         In 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.

         In 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 arrears.

         All of 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.[4] 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 recalculation.

         With 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, ...

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