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Jass v. Atkinson

Court of Appeals of Iowa

June 5, 2019

BENJAMIN JOHN JASS, Plaintiff-Appellant,

          Appeal from the Iowa District Court for Hardin County, James C. Ellefson, Judge.

         A father challenges surname, visitation, transportation, child support, and tax credit issues in a decree issued under Iowa Code section 600B.40 (2017).

          Christy R. Liss and Joshua L. Christensen of Clark, Butler, Walsh & Hamann, Waterloo, for appellant.

          Reyne L. See of Peglow, O'Hare & See, P.L.C., Marshalltown, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          TABOR, JUDGE.

         A few days before his son, J.C., [1] was born, Benjamin Jass petitioned to establish paternity, custody, visitation, and child support under Iowa Code section 610B.40 (2017). The district court issued a decree granting joint legal custody and placing physical care with the child's mother, Carrie Van Hugten.[2] On appeal, Benjamin does not challenge the physical-care arrangement. Instead, he seeks a change in the child's surname, expanded visitation, shared transportation, decreased child support, and alternating tax benefits.

         Because our de novo review leads us to the same conclusions as the district court's thorough and well-reasoned decree, we affirm-with a minor modification to the duration of the child-care expense variance from the support guidelines. On the issue of attorney fees, we find no abuse of discretion in the district court's award of $12, 500 toward Carrie's trial representation, but we decline to award appellate attorney fees on top of that amount.

         I. Facts and Prior Proceedings

         Carrie and Benjamin met on in October 2016 and dated for about five months. They broke up a few days before Carrie learned she was pregnant. J.C. was born in October 2017. Because paternity had not yet been established, Carrie did not list a father on the birth certificate. She also gave the child the surname Van Hugten. Carrie is an active-duty major in the United States Marine Corps, earning $123, 836 per year, plus sustenance and housing stipends. Based on a service-limitation rule, she must retire from the Marines on April 1, 2020.

         From 2014 through 2016, Carrie was married to Leon Van Hugten, a member of the Dutch Army.[3] She and Van Hugten, who still lives in the Netherlands, had three children together-twins born in 2015 and a daughter born in 2016. The twins arrived prematurely; one died in the hospital and the other has special health issues. Those children all have the surname Van Hugten. Carrie and the children live in Newton.

         Benjamin had also been married; his wife died of cancer in August 2016. They had two sons, who were aged five and nine at the time of the hearing in this case. Benjamin remarried in June 2018 to Kathryn, whom he met in the summer of 2017 on a "Facebook widow group." Kathryn brought two daughters, ages ten and thirteen, to the Jass household. Benjamin works as a special education teacher in the Iowa Falls-Alden school district, earning $63, 282 per year. He also earns an additional $2249 a year from coaching tennis and $6073 from the farm he operates with his father.

         In early October 2017, Benjamin filed a petition requesting DNA testing to confirm his paternity of the baby Carrie expected to deliver by a scheduled caesarean section in mid-October. The petition also asked the court to determine his rights and obligations including joint custody, physical care, child support, and tax dependency exemptions. The district court heard testimony on Benjamin's petition in August 2018.

          The October 2018 decree granted the parents joint custody of J.C. and placed physical care with Carrie. The decree allowed Benjamin visitation every other weekend during the school year and three weeks of interaction in the summer, as well as certain holidays. The court required Benjamin to provide all transportation for visitations but offset his child support for that burden. And the court ordered Benjamin to pay $688.11 in monthly child support (which included an upward departure from the child support guidelines for child-care expenses) and an additional $26.95 per month in back child support. The court decided Carrie would be entitled to claim the child as a dependent on her taxes every year. The court denied Benjamin's request the child's surname be changed to Jass or hyphenated as Van Hugten-Jass. Instead, the court directed Jass be added to the birth certificate as the child's second middle name. Finally, the court awarded trial attorney fees to Carrie in the amount of $12, 500.

         Benjamin's appeal spans six topics: (1) his son's surname, (2) visitation, (3) transportation, (4) child support, (5) tax benefits, and (6) attorney fees.

         II. Scope and Standards of Review

         We engage in a de novo review of equitable disputes involving a child's surname. Montgomery v. Wells, 708 N.W.2d 704, 705-06 (Iowa Ct. App. 2005). We give weight to the district court's factual findings, especially when considering the credibility of witnesses, but we are not bound by them. Id.

         We also review de novo issues involving visitation. Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001). Likewise, we review child-support awards anew, Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996), though we evaluate the district court's interpretation of the child support guidelines for errors at law. In re Seay, 746 N.W.2d 833, 834 (Iowa 2008). We also recognize the discretionary aspect of a district court's decision whether to impose a variance. In re Marriage of Kupferschmidt, 705 N.W.2d 327, 334 (Iowa Ct. App. 2005) (holding "district court did not abuse its discretion in refusing to deviate from the guidelines").

         By the same token, we review the award of attorney fees for an abuse of discretion. In re Fiscus, 819 N.W.2d 420, 422 (Iowa Ct. App. 2012).

         III. Analysis

         A. Surname

         In his petition, Benjamin asked the court to order the child be given the surname Jass. On the birth certificate, Carrie recorded her son's name as "[J.C.] Van Hugten." At the hearing, Benjamin said he did not object to his son's first and middle names but believed "my son should have my last name." Benjamin testified he was opposed to "any type of hyphenated name" and expressed incredulity as to why the child "would need to be tied to her ex-husband in any way." Benjamin did not tell the court why it would advantage his son to have Jass as a surname.

         Carrie provided more personal testimony concerning her connection to the Van Hugten name. She first noted her twin daughter who died, M.V.H., was buried in the Newton Union Cemetery. Carrie then explained that she "almost died" giving birth to her next daughter, E.V.H. From there, she testified: "I was about ready to have my C-section with [my son] [a]nd so I changed my last name to Van Hugten in anticipation of what could become my death . . . so that I could be buried with my daughter . . . with the last name Van Hugten." Carrie owns a burial plot with a single headstone bearing her deceased daughter's name; she plans to be buried in the same plot under the same last name.

          As to their son's surname, Carrie testified her preference would be Van Hugten so he would have the same last name as his half-siblings and not feel like "an outcast in his own home." She continued: "It's the Van Hugten home, and for him to be the Jass boy, and especially if Ben is awarded every other weekend, I don't think that's conducive to elementary school." But Carrie also testified she understood Benjamin's position and was amenable to a dual last name: "like, Van Hugten and then space and then Jass."[4]

         The district court admittedly elected "an option not proposed by either party." The court decided the child "should have Jass as an additional middle name" creating the full name [J.C.] Jass Van Hugten. The court reasoned: "Many families have used as a middle name a historic family surname that might otherwise be lost, to help a child maintain awareness of his or her heritage."[5]

         On appeal, Benjamin renews his request for the surname substitution. But in addition, he now lobbies for the compromise position of assigning his son the hyphenated surname Van Hugten-Jass or the unhyphenated, but dual surname Van Hugten Jass.

         In original naming disputes, we focus on the best interests of the child.[6]Montgomery, 708 N.W.2d at 706-08. Our courts have abandoned the outdated notion that a child should always bear the last name of his or her father. Id. (quoting In re Marriage of Gulsvig, 498 N.W .2d 725, 729 (Iowa 1993)). On the flipside, a mother "should gain no advantage from her unilateral act in naming [the child]." Id. Combining both parents' last names into a dual surname may be an equitable solution in some circumstances, but not in every case. Gulsvig, 498 N.W.2d at 729; see Richard J. Lussier, Delaney v. Appeal from Probate: When is a Dual Surname in the Best Interest of the Child?, 9 Conn. Prob. L.J. 161, 167 (1994) ("Adoption of a dual surname is not always in the best interest of the minor child.").

         In typical appellate court style, we weigh a non-exhaustive, yet lengthy, list of considerations in gauging a child's best interest in a naming ...

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