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Brashear v. Aldini

Court of Appeals of Iowa

October 10, 2018

BIANCA BRASHEAR, Plaintiff-Appellee/Cross-Appellant,
v.
SETH ALDINI, Defendant-Appellant/Cross-Appellee.

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

         Seth Aldini appeals and Bianca Brashear cross-appeals from the order modifying the custody and support decree.

          Lynn C.H. Poschner (until withdrawal) and Eric Borseth of Borseth Law Office, Altoona, for appellant.

          Lynne Wallin Hines of Lynne W. Hines Law Office, Des Moines, for appellee.

          Considered by Danilson, C.J., and Vogel and Tabor, JJ.

          DANILSON, CHIEF JUDGE.

         Seth Aldini appeals and Bianca Brashear cross-appeals from the order modifying their custody and support decree. We affirm as modified on appeal, and affirm in part and reverse in part on cross-appeal.

         I. Background Facts and Proceedings.

         Bianca and Seth have never been married and are the parents of M.B., born in October 2009. A decree establishing paternity, custody, visitation, and support was entered on September 20, 2010. Pursuant to the decree, Bianca and Seth were granted joint legal custody, and Bianca was granted physical care. Seth was ordered to pay child support of $541 per month based on his income of $40, 024 and Bianca's income of $19, 362. The decree provided Seth was to have "reasonable visitation as agreed upon by the parties." In the event they could not agree, a graduated parenting schedule provided that until the child was eighteen months of age, Seth had parenting time every other Saturday from 9:00 a.m. to 12:00 p.m.. Then, until the child was three years of age Seth's parenting time was every other Saturday from 9:00 a.m. to 5:00 p.m. From age three to three and a half, Seth had parenting time with M.B. every other Saturday from 9:00 a.m. until Sunday at 6:00 p.m. and every Wednesday from 4:00 p.m. to 7:00 p.m. Thereafter,

D. Commencing at three and a half (3 1/2) years of age: Every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m. and every Wednesday from 4:00 p.m. until 7:00 p.m. If the child is involved in any activities, then Seth agrees to either take the child to the activity or he will switch his weekly visitation day to another weekday.
E. The parties shall alternate holidays pursuant to Exhibit A . . . .
F. When [M.B.] turns three (3) years of age, both parties shall receive two (2) weeks of non-consecutive visitation per year. The week selected shall include his/her regularly scheduled parenting time. The parties shall provide at least thirty (30) days' written notice of the date he/she is requesting. Bianca shall receive first choice of the weekly visitation in odd-numbered years and Seth shall receive first choice of the weekly visitation in even-numbered years. When [M.B.] commences kindergarten, the two-week visitation shall be during the summer break.

         On August 18, 2016, Bianca filed an application to modify child support. On December 4, 2016, Seth answered and counter-claimed for a change of physical care, or in the alternative, an amended visitation schedule. Trial was held on May 10 and 11, and August 30, 2017.

         At the time of trial, Bianca was thirty-two years old. M.B. is her only child. Bianca and M.B. reside at Bianca's mother's home as they have since before the 2010 decree. Bianca's boyfriend also sometimes resides with her at her mother's residence but had moved out by the August trial date. M.B. was in second grade in public school. M.B. has no educational or developmental concerns and is active in dance classes and competition.

         Bianca was employed part time as a server and bartender. She has a bachelor's degree, which she earned from Iowa State University in 2013, with a major in family and consumer sciences. Her tax returns reflect earnings of $13, 695 in 2014; $18, 049 in 2015; and $25, 400 in 2016. Bianca changed employers during the trial, and as of the August trial date, Bianca was working twenty-eight hours per week and she was paid $8.35 per hour, plus tips. However, she testified she intended to work as close as possible to forty hours per week once the litigation was finished. The most Bianca has earned was at an unspecified time when she worked for Casey's in an office position earning $30, 000 annually.

         Seth was thirty-four years old and married to Lindsay. Seth and Lindsay have two children, a seven-year-old and a five-year-old. Lindsay and Bianca have a long history of animosity toward one another. Seth is employed full-time as a software engineer with the same employer as before the 2010 decree. He now earns $77, 000 per year. As required by the original decree, Seth provides health insurance for M.B.

         The court found Bianca's employment had changed, her education had changed, Seth's income had changed, and Seth now had an additional dependent. The court concluded a substantial change of circumstances existed requiring a modification of Seth's child support obligation. It determined Bianca was "intentionally underemployed" and imputed income of $35, 000 to her. Seth was ordered to pay $685 per month for child support for M.B. The court determined Seth had failed to prove a change of custody or visitation was warranted.

         Seth appeals and Bianca cross-appeals.

         II. Scope and Standard of Review.

         We review proceedings to modify custodial provisions de novo. Iowa R. App. P. 6.907; Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa 2002). "[W]e give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them." McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. ...


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