In Re the Marriage of Misty Klemmensen and Michael Klemmensen Upon the Petition of Misty Klemmensen, and Concerning Michael Klemmensen

IN THE COURT OF APPEALS OF IOWA

No. 14-1292
Filed May 6, 2015

IN RE THE MARRIAGE OF MISTY KLEMMENSEN
AND MICHAEL KLEMMENSEN

Upon the Petition of
MISTY KLEMMENSEN,
Petitioner-Appellant,

And Concerning
MICHAEL KLEMMENSEN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Mary Jane

Sokolovske, Judge.

A mother appeals the physical care and child support awards in the

dissolution of marriage decree. AFFIRMED AS MODIFIED AND REMANDED.

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

Jeffrey T. Myers of Hutchison, Myers, Eckert & Vohs, Sioux City, for

appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, J.

The district court dissolved the marriage of Misty and Michael

Klemmensen and awarded physical care of their six-year-old daughter, K.L.K, to

Michael. Misty appeals that decision, asserting she should be the primary

caregiver because of Michael’s work schedules. In the alternative, Misty asks for

a right of first refusal for providing K.L.K’s care when Michael has overnight work

obligations. She also appeals the court’s denial of a $200 credit for her support

of another child and the court’s granting of Michael’s motion to reconsider.

After reviewing the record, we affirm the physical care award to Michael.

But we order three modifications of the decree. First, because it is in K.L.K.’s

best interest to spend the maximum amount of time with each parent, we modify

the decree to provide Misty with the right of first refusal when Michael’s work

requires him to be away from K.L.K. for twelve consecutive hours or more.

Second, we find Misty is entitled to the child support credit and remand for a new

child support calculation. Third, because Michael’s motion to reconsider was

untimely, we vacate the portions of the district court’s August 8, 2014 order

granting Michael’s requests pertaining to the tax dependency deduction and the

parties’ summer visitation rights.

I. Background facts and proceedings

Misty and Michael were married on May 7, 2007. They have one child

together, K.L.K., who was born in 2008. The parents separated in April 2013.

Misty filed for dissolution of marriage on July 29, 2013.
3

Michael is thirty-one years old and in good health. He stayed in the

marital home in Hinton, which was also his childhood home. Michael works as a

fireman for the State of Iowa, a volunteer for the Hinton Fire Department, and is

member of the Iowa Air National Guard. He also works part-time at Peak

Performance, a fitness center operated by a friend. In addition, Michael has

assisted his father with work projects, such as striping parking lots. Michael’s

work schedule as a fireman requires him to be on duty for twenty-four hours then

off duty for forty-eight hours. His guard service requires him to be gone one

weekend of every month.

Misty is thirty-seven years old and in good health. She currently works as

a receptionist at the Holton Clinic of Chiropractic in Hinton. She works 8:00 a.m.

to 6:00 p.m. on Mondays, Tuesday and Thursdays, and from 8:00 a.m. to 2:00

p.m. on Wednesdays and Fridays. After the separation, Misty temporarily moved

in with her mother. In October 2013, she began cohabitating with Dr. Nick Holton

at his house in Le Mars, which was approximately a sixteen-minute drive from

Hinton.

At the time of the dissolution trial, K.L.K. was five years old and attending

kindergarten in Hinton. She also attended before and after school care as

required by her parents’ schedules. Both parents believed that she had adjusted

well to spending time in two different homes.

Before trial, the parties agreed on most issues, including joint legal

custody. But the district court was left to decide physical care, visitation, and
4

child support. Both parents sought physical care.1 The court held trial on

February 13 and February 25, 2014. Misty called four witnesses; Michael

presented thirteen witnesses. Both parties testified themselves, and each

expressed positive views of the other’s parenting abilities.

On July 1, 2014, the court filed the decree, granting physical care to

Michael. Misty filed an Iowa Rule of Civil Procedure 1.904(2) motion on July 9,

2014, asking the court to reconsider the decision on physical care as well as its

decision on a child credit.2 Michael filed his resistance on July 16, 2014.

Michael filed two motions to reconsider on July 17, 2014. The district court ruled

on all of these motions on August 8, 2014. The court denied Misty’s requests to

change physical care and for credit for support she paid for another child, but did

agree to recalculate child support in recognition that Misty would have

extraordinary visitation of at least 127, but not more than 147 overnights per

year. See Iowa Court Rule 9.9. The court granted Michael’s request that Misty’s

five weeks of summer visitation not be consecutive and his request to alternate

the dependency tax deduction. Misty now appeals.

II. Standard of review

We review custody and child support decisions de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). Although we decide the issues

1
In her petition, Misty asked for joint legal custody and joint physical care. In his
answer, Michael agreed to that request. But by the time of trial, Misty was seeking
physical care, as was Michael, though he testified that in the alternative he would favor
alternating weekly physical care of their daughter.
2
Misty has a sixteen-year-old son from a previous relationship. The child and his father
live in Tennessee. Misty has regular visitation as the child spends his summers with her.
Misty asserted she paid child support of $200 per month.
5

raised on appeal anew, we give weight to the factual findings, especially in

regard to witness credibility. In re Marriage of Witten, 672 N.W.2d 768, 773

(Iowa 2003). Decisions on the physical care of a child are made by considering

the child’s best interests. In re Marriage of Decker, 666 N.W.2d 175, 177 (Iowa

Ct. App. 2003).

III. Physical care

Misty seeks physical care of her daughter K.L.K. In granting physical care

to Michael the district court said, “In determining which parent would overall

promote the child’s best interest, the court finds that Michael is better up to this

task. The court finds that the physical care of K.L.K. should be placed with

Michael subject to Misty’s rights of visitation.”

Both Misty and Michael have proven parenting skills and strong bonds

with their daughter. They both participated in K.L.K.’s care before their

separation and both were active in her everyday activities. Likewise, both

parents speak positively of the other’s ability to care for K.L.K. Misty’s overriding

concern about placing physical care with Michael emphasizes his demanding

work schedules. Addressing that issue, the court said:

Michael although he does work numerous hours, he has placed
K.L.K. as his number one priority. He testified that he is solely
focused on K.L.K. and is not dating anyone. He remained in the
family home and believes that it is best for K.L.K. to likewise have
the family home as K.L.K’s principle residence. He does
acknowledge that Misty is a good mother but that he will provide a
stable, consistent and safe home for K.L.K. He testified that he will
support the relationship between K.L.K. and Misty.
6

In reviewing this decision, we consider an array of factors.3 See Iowa

Code § 598.41(3); In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974). Our goal is to determine which parent “will do a better job raising the

child.” In re Marriage of Decker, 666 N.W.2d 175, 177 (Iowa Ct. App. 2003).

This is a close question because both Misty and Michael are more than suitable

custodians. The district court justified its physical care award to Michael as

follows:

The court has considered both parents for placement of K.L.K.
Each parent has their own assets that show that each is a good
parent to K.L.K. The court has also considered joint physical care
but this does not appear to be in the best interests of K.L.K. There
were issues of a lack of communication between Misty and
Michael. There is also the issue of Misty’s current living situation
and the fact that she now residing in Le Mars and having K.L.K.
needing to travel at least fifty percent of the time to attend school.

After reviewing the evidence and the testimony of the witnesses presented

at trial, we find no reason to reverse the district court’s decision. While we are

3
The pertinent factors in this case include:
a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with and
attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child before
and since the separation.
e. Whether each parent can support the other parent's relationship
with the child.
f. Whether the custody arrangement is in accord with the child’s
wishes or whether the child has strong opposition, taking into
consideration the child’s age and maturity.
g. Whether one or both the parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
Iowa Code 598.41(3) (2013).
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less concerned than the district court about any detriment to K.L.K. from Misty’s

current living situation, we agree Michael’s home offers K.L.K. greater stability.

Michael’s supervisor, Dan Williams, testified about a firefighter’s work

schedule and the way shifts are assigned during the twenty-four hours on, forty-

eight hours off schedule. Williams explained this schedule allowed Michael to be

home twenty days a month. He also testified that on the days he is working,

“there’s always some flexibility as far as if a situation comes up and he needs to

take off.” Michael’s other employment and National Guard duty, while increasing

his work load, do not impede his overall ability to handle physical care of K.L.K.

Michael testified he was committed to spending as much time as possible

with K.L.K. and would also support his daughter’s relationship with her mother.

We find nothing in the record to dispute his testimony, and we give deference to

the district court as it “had an opportunity to view, firsthand, the demeanor of the

parties and evaluate them as custodians.” In re Marriage of Walton, 577 N.W.2d

869, 871 (Iowa Ct. App. 1998).

IV. Right of first refusal

In the alternative to physical care, Misty asked the district court to add a

provision to the decree requiring Michael to offer her the opportunity to care for

K.L.K. when he was unavailable to provide supervision due to an extended work

obligation before he utilized a third-party child care provider. This arrangement

has been termed a “right of first refusal” in our case law. See In re Marriage of

Lauritsen, No. 13-1889, 2014 WL 3511899, at *3 (Iowa Ct. App. July 16, 2014).

The court did not grant Misty’s request.
8

Our law requires a custody award that will “assure the child maximum

continuing physical and emotional contact with both parents” after divorce,

including “liberal visitation rights where appropriate.” Iowa Code § 598.41(1)(a).

Again, our primary consideration is the best interests of the child and in most

cases liberal visitation serves that interest. In re Marriage of Stepp, 485 N.W.2d

846, 849 (Iowa Ct. App. 1992).

Michael acknowledged he planned to have a member of his extended

family or another babysitter watch K.L.K. every third day when he was required to

work an overnight shift. He acknowledged this parenting plan did not maximize

K.L.K.’s time with both parents, saying: “I feel it would maximize her time with

me.” The following testimony from Michael was telling:

Q: Michael, why did you provide that Misty can have [K.L.K.]
one night a week? A: Because it would—to me it would make
sense to have it fall on one of the nights where I would either have
to have a babysitter or the family—or part of my extended family to
watch [K.L.K.]. I thought why not give Misty that night.
Q: And we heard testimony that she’s available any night of
the week, didn’t we? A: Correct.

He went on:

Q: Are you willing to have [K.L.K.] spend other nights during
the week when you are at work with her mom if she’s available? A:
Not at this time.

It is not clear why it would make sense to have Misty care for K.L.K. one

night per week when it works with Michael’s schedule, but not have the option to

care for her for additional nights if Michael will be required to arrange for a

substitute care provider. We conclude Misty should be given “the right of first

refusal” when Michael is required to work for twelve or more consecutive hours or
9

during his National Guard weekends if Misty does not already have visitation

scheduled with K.L.K. for that weekend. See Lauritsen, No. 13-1889, 2014 WL

3511899, at *3 (upholding right-of-first-refusal provision). From our review of the

record, we find Michael and Misty have been able to put aside their differences

when it comes to communicating about K.L.K. Accordingly, we do not believe

providing Misty a right of first refusal will result in heightened conflict between the

parents. Misty’s opportunity to refuse this additional time to care for K.L.K.

during Michael’s work obligations should be accomplished at the same time she

receives Michael’s six-month work schedule to set the six midweek days of

visitation as provided in the original decree. We recognize providing Misty this

right of first refusal may increase the percentage of the noncustodial parent’s

extraordinary visitation credit under the child support guidelines. See Iowa Ct. R.

9.9 (providing fifteen percent credit for 128 to 147 days and twenty percent credit

for 147 to 166 days). The district court should address this extraordinary

visitation credit during the remand for recalculating child support ordered in the

next issue.

V. Child support credit

Misty appeals the district court’s calculation of her child support claiming

the court failed to include the $200 per month she pays in support of a child from

a previous relationship. The district court found insufficient evidence to support

Misty’s payment in the record, though the amount was included on Misty’s child

support worksheet.
10

In our de novo review, we note that Misty claimed the $200 support

payment in her affidavit of financial status filed with the court on February 12,

2014. Michael acknowledges the payment in his motion resisting Misty’s rule

1.904(2) motion. We find this record sufficient to support her claim. We remand

for a recalculation of child support and for a hearing on what her support should

be going forward. The hearing on remand should address this issue along with

any other changes in child support calculations that arise from our modification of

the original decree.

VI. Michael’s belated motion to enlarge or amend

Under the rules of civil procedure, a party has fifteen days from the district

court’s filing of the decision to seek to enlarge or modify. See Iowa R. Civ. P.

1.904(2); Iowa R. Civ. P. 1.1007. Here, the district court filed the dissolution

decree on July 1, 2014. Fifteen days ran on Wednesday, July 16, 2014. Michael

filed both of his motions to “reconsider” on July 17, 2014, one day too late.4

Michael argues if his motions were untimely, the district court still had

discretion to address the issues of summer visitation and the tax dependency.5

The decree allowed Misty five consecutive weeks of summer visitation. The

decree did not mention K.L.K.’s contact with Michael during that period. In

response to Michael’s belated filing, the court amended the decree to break up

the five weeks of visitation, providing no more than two weeks could be

4
Michael claims his motions were timely because a holiday, the Fourth of July, occurred
during the fifteen days. Under Iowa Code section 4.1(34), legal holidays will only extend
the deadline if they fall on the last day for filing the motion.
5
Michael does not make an alternative argument that the appellate court should modify
the original decree regarding these issues.
11

consecutive. The court also amended the decree to direct the parties to claim

K.L.K. as a dependent on their income tax returns in alternating years.

Our courts have “always strictly enforced the time in which a party has to

file posttrial motions.” Estes v. Progressive Classic Ins. Co., 809 N.W.2d 111,

117 (Iowa 2012). After the deadline, a party cannot file posttrial motions. Id.

Therefore, we must vacate the district court’s amendment of the decree.

Costs on appeal are divided equally to Michael and Misty.

AFFIRMED AS MODIFIED AND REMANDED.