In re the Marriage of Happel

IN THE COURT OF APPEALS OF IOWA

No. 24-1290
Filed May 21, 2025

IN RE THE MARRIAGE OF NICOLE A. HAPPEL
AND BRIAN D. HAPPEL

Upon the Petition of
NICOLE A. HAPPEL, n/k/a NICOLE A. SHIMP,
Petitioner-Appellant/Cross-Appellee,

And Concerning
BRIAN D. HAPPEL,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.

Nicole Shimp appeals the district court order modifying the visitation

provisions of she and Brian Happel’s dissolution decree. Happel also cross-

appeals the district court’s modification order, raising numerous arguments.

AFFIRMED ON APPEAL AND CROSS-APPEAL.

Meredith L. Ludens of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant/cross-appellee.

Lana L. Luhring of Laird & Luhring Law Office, Waverly, for appellee/cross-

appellant.

Considered without oral argument by Greer, P.J., and Langholz and Sandy,

JJ.
2

SANDY, Judge.

“No matter what, it’s an argument,” said Brian Happel. During this case,

this statement has unfortunately proven to repeatedly ring true.

Nicole Shimp f/k/a Happel appeals the district court order modifying the

visitation provisions of their dissolution decree. Nicole claims the district court

erred by not granting her request for primary physical care of their three sons.

Alternatively, she argues the district court erred by altering the summer visitation

schedule to eliminate her Wednesday overnight visitation with the children.

Brian cross-appeals, claiming the district court erred by (1) denying his

request for a week-on/week-off summer visitation schedule; (2) awarding Nicole

$20,000 in trial attorney fees; and (3) incorrectly determining his income for child

support purposes.

Upon our de novo review of the record, we affirm.

I. Background Facts and Proceedings

This is the second contested modification action involving these parties in

four years—both have found their way to our court. Brian and Nicole were married

from 2009 until their divorce in 2017. Their marriage produced three sons—O.H.,

born in 2011; E.H., born in 2013; and C.H., born in 2015. The couple entered into

a stipulated agreement under which they agreed to exercise joint legal custody

and physical care of the children. The district court subsequently adopted and

incorporated their stipulated agreement into its dissolution decree dissolving their

marriage.
3

In May 2021, Brian petitioned to modify the joint physical care provision of

the decree. In his petition, Brian requested that he be granted primary physical

care of the children, subject to reasonable visitation with Nicole.

In July 2022, the district court issued its modification order, granting Brian’s

request for primary physical care of the couple’s children. In explaining its

decision, the district court noted Nicole’s move to Parkersburg, her time-

consuming job running a daycare, and the parties’ difficulties in communicating—

highlighted by her failure to disclose to Brian trauma perpetrated against O.H. The

district court also set forth a visitation schedule for Nicole as part of the modification

order. Under the order, Nicole was to have visitation with the children “every other

weekend from Friday at 6:00 p.m. until they are delivered to their respective school

on Monday morning.” As for visitation during the summer, the order provided that

Nicole would have visitation “every other weekend from Thursday at 6:00 p.m. until

Monday morning at 9:00 a.m.” Additionally, Nicole was to have “five weeks of

summer parental time.”1

Nicole appealed the district court’s modification order, asserting Brian had

not established a substantial change of circumstances to warrant a modification of

their joint physical care arrangement. Alternatively, she argued the district court

should have granted her midweek overnight visitation with the children. Brian

cross-appealed, claiming the district court incorrectly determined his income for

child support purposes. Ultimately, we affirmed the district court’s decision to grant

Brian primary physical care of the couple’s three sons. See In re Marriage of

1 Of relevance to this opinion, the district court determined Brian’s gross income to

be $100,000 for purposes of child support in the July 2022 modification order.
4

Happel, No. 22-1393, 2023 WL 2670032, at *2 (Iowa Ct. App. Mar. 29, 2023)

(concluding Nicole’s “multiple changes in employment, multiple moves, long work

hours, and communication lapse amounted to a substantial change of

circumstances” and Brian “established he was the superior caretaker”).

However, we modified the district court’s visitation schedule to provide

Nicole with midweek overnight visitation on Wednesdays. Id. at *3. Specifically,

we ordered that Nicole would have “midweek visits from Wednesday after school

or from 9:00 a.m. if there is no school until school begins on Thursday morning or

if no school on Thursday, until 9:00 a.m.” Id. Additionally, we remanded back to

the district court to consider Brian’s income argument related to child support

payments. Id. at *4 (“In light of our modification of the midweek visitation provision

of the decree, we remand for recalculation of child support, at which time the

parties may revisit the underlying income figures.”).

Less than a month after our decision was issued, Brian filed a motion for

clarification. The main impetus for the motion was Brian’s belief that:

The first issue that remains unresolved is whether or not the
Wednesday midweek visitation continues during the summer months
while the children are not in school. When combining both the
Modified Decree and the Court of Appeals decision, it is unclear
whether or not the Court of Appeals intended for the midweek visits
to continue during the summer months.

The district court subsequently held a hearing on Brian’s motion on July 7, 2023.

During the hearing, regarding the issue of child support, the district court stated,

“I’m not revisiting the actual amounts that I had attributed or incomes that I
5

attributed to both parties.”2 As for the issue of clarifying the summer visitation

schedule, the court made the following comments:

Counsel, I guess to be clear here, I’m going to be blunt. And I’m
not—I don’t want my blunt response here to be interpreted as
directed at any person, nor do I want the appellate court to take issue
with the district court by me being blunt.
I am not going to clarify the Court of Appeals. That is not my
job, and I’m not entering any kind of order today whatsoever to clarify
the Court of Appeals’ decision. It reads how it reads, and I’m not
going to enter any kind of order to clarify it.
My order reflected what I thought, to me, was appropriate for
overnights. They saw it otherwise. They have the final say. It is
what it is. Do I think what they meant is what is expressed in their
final decision? No. But that’s not for me to decide.
I’m not sure if there is a 1.904 equivalent in the appellate
procedure, but perhaps that’s the way to address it. If the time has
passed, then I guess my decision today will be final, and the
appropriate thing is to appeal me and then in theory have the
appellate court review its own decision and fix it by way of reversing
me again, saying I should have at the district court done this in the
clarification.
But I’m gonna be clear, I’m not denying anybody an
opportunity to make a record; but I’m just telling you, in advance of
that record, I’m not touching this with a 10-foot pole. I’m not clarifying
anything as far as what the appellate court did.

Four days after the clarification hearing, Brian filed a second petition for

modification. In his petition, he asserted that there had been a substantial and

material change in circumstances since our decision on appeal. Brian claimed,

“the Court of Appeals decision regarding visitation has caused confusion and

created conflict between the parties.” He added, “[t]he District Court, in hearing on

July 7, 2023, was not in a position to clarify this confusion, agreed that clarification

was necessary, and suggested that a Modification would resolve this issue.” Brian

2 The district court did, however, state, “I will revisit the calculations to address the

fact that now there are additional days attributed to Ms. Shimp.” But the court
expressed its belief that recalculating income figures would be inappropriate and
would require a subsequent modification petition.
6

vaguely requested the district court to modify Nicole’s visitation schedule.3 He also

requested a modification of the child support provisions of the decree. Nicole filed

an answer to Brian’s petition and asserted a counterclaim that she be granted

primary physical care of the children.

The district court held a three-day modification trial in February 2024.

During the hearing, the court heard extensive testimony from Brian and Nicole.

Both testified that their communication has drastically deteriorated since the

previous modification. As Brian testified, “[i]nstead of, you know, simple

communications back and forth, it always had to be long, drawn-out explanations

or accusations.” He added, “[w]e literally cannot agree on anything.” Nicole

echoed Brian’s sentiments, testifying that Brian is frequently “belittling, demeaning”

to her in their communications. She also testified that, “like anything that

Mr. Happel can do to dismiss my opinion, he does.”

Throughout trial, it became evident much of the friction in Nicole and Brian’s

communications was caused by their sons’ extensive involvement in

extracurricular activities. The children are involved in a wide variety of sports, such

as: wrestling, rugby, baseball, basketball, and flag football. In Nicole’s view, Brian

frequently discusses extracurricular activities with the boys before discussing them

with her. She added that Brian often mentions to the children that he will have to

discuss things with her before they can participate in certain events or activities.

3 Brian clarified in his testimony during the modification trial that he was requesting

the district court to eliminate midweek overnight visitation for Nicole during the
summer. In his testimony, Brian requested the district court consider modifying
the summer visitation schedule to utilize a “week-on/week-off schedule.
Additionally, in his pre-trial brief, he requested that the district court eliminate
midweek overnight visitation for Nicole during the school year.
7

She expressed a belief that this unfairly places the children in the middle of their

disagreements and makes her out to be the bad guy. As she put it, “[i]f I’m not

okay with it, I am automatically placed as the bad guy which is how [Brian] prefers

it to be.” Nicole also expressed concern that Brian’s alleged habit of placing the

children in the middle of their disagreements over their activities has led to her

being alienated from their son O.H. Of note, at the time of trial, O.H. had started

to refuse to participate in visitation with Nicole.4

Additionally, Brian and Nicole each generally accused each other of making

medical decisions for the children over the objection or without the input of the

other. They also accused each other of speaking poorly about the other in front of

the children. In one incident, Brian testified that C.H. once came up to him and

told him “Mom told me you never wanted me.” In another incident involving C.H.,

Nicole testified that C.H. said to her that Brian told him it was her fault that he did

not make a travel basketball team.

Following the trial, the district court issued its modification order. The district

court denied Nicole’s request to grant her primary physical care of the couple’s

children. The district court granted Brian’s request to eliminate midweek overnight

visitation for Nicole during the summer. But it denied his request to utilize a week-

on/week-off request during the summer, as well as his request to eliminate

midweek overnight visits during the school year. The court also granted Brian’s

request to change Nicole’s income for child support purposes but denied his

4 Brian has subsequently been found in contempt for O.H.’s refusal to not
participate in visitation with Nicole and allowing O.H. to stay with him during
Nicole’s visitation time. Nicole has also recently been found in contempt for failure
to insure the children.
8

request to change the gross income figure attributed to him. Lastly, the district

court awarded Nicole $20,000 in trial attorney fees.

This appeal followed.

II. Standard of Review

Our review for petitions to modify the physical care and visitation provisions

of a dissolution decree is de novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32

(Iowa 2015). “Although we make our own findings of fact, ‘when considering the

credibility of witnesses the court gives weight to the findings of the trial court’ even

though we are not bound by them.” Id. (citation omitted). “The best interest of the

child is the governing factor in custody cases.” In re Marriage of Kirman, No. 02-

2002, 2003 WL 21230952, at *2 (Iowa Ct. App. May 29, 2002).

We address Nicole’s arguments on appeal first and then move on to

address Brian’s claims on cross-appeal.

III. Analysis

A. Nicole’s Appeal

1. Physical Care

On appeal, Nicole contends the district court erred by denying her request

to modify the decree to place primary physical custody of the children with her.

She contends the evidence at trial showed a substantial change in circumstances

had occurred due to “breakdown in communication, Brian placing the children in

the middle, driving a wedge between [herself] and the children, and engaging in

parental alienation.” She also asserts Brian’s “attempts to exclude [her] from

decisions and participating in the children’s appointments, activities, and events”

constitutes a substantial change circumstances. Additionally, she believes the
9

evidence presented at trial establishes she is the parent who can offer superior

care for the children. While this is a close case, we cannot agree that the district

court was wrong in declining to grant Nicole’s request for primary physical care of

the children.

“[O]nce custody has been fixed it should be disturbed for only the most

cogent reasons.” In re Marriage of Brown, 778 N.W.2d 47, 52 (Iowa Ct. App.

2009). Consequently, a party seeking to change physical care from one parent to

the other bears an especially “heavy burden.” Id. Our supreme court long ago laid

out the burden a parent seeking modification must carry:

To change a custodial provision of a dissolution decree, the applying
party must establish by a preponderance of evidence that conditions
since the decree was entered have so materially and substantially
changed that the children’s best interests make it expedient to make
the requested change. The changed circumstances must not have
been contemplated by the court when the decree was entered, and
they must be more or less permanent, not temporary. They must
relate to the welfare of the children. A parent seeking to take custody
from the other must prove an ability to minister more effectively to
the children’s well being.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

We begin our analysis by noting that many of the behaviors Nicole accuses

Brian of have been found sufficient to warrant a modification of physical care in the

past. For instance, there is evidence in the record suggesting Brian has shut out

Nicole regarding certain medical decisions concerning the boys. In one email sent

by Brian to Nicole, he wrote, “I don’t need your consent to seek medical treatment

for the boys.” Nicole also testified that Brian has taken the boys out of school for

medical appointments without informing her. Additionally, there is evidence that

Brian engaged a counselor—despite Nicole’s objections—for the boys. Such
10

behavior violates the custodial rights of Nicole and has previously been found to

be sufficient to trigger a modification. See In re Marriage of Stanley, No. 16-1822,

2017 WL 1278364, at *2 (Iowa Ct. App. Apr. 5, 2017) (affirming a modification

where one parent refused to consult or cooperate with the other parent on matters

concerning the child’s welfare, such as education and therapy).

Further, we are especially mindful of the evidence in the record that Brian

has spoken poorly about Nicole in front of the boys and inappropriately placed

them in the middle of his disagreements with her about their extracurricular

activities. Nicole testified that C.H. said to her that Brian told him she was the

reason he did not make a travel basketball team. Nicole also testified that the boys

have informed her that Brian speaks negatively about her in front of them. More

importantly, the district court explicitly found that Brian “continues to routinely place

the children in the middle by discussing the activities with the children and then

directing the children to broach the subject with their mother, thus placing [her] in

a difficult position.”5 The district court added, “[i]f she presents any form of

5 In his brief, Brian contends the district court erred by finding he placed the
children in the middle of his disputes with Nicole over extracurricular activities. He
claims this error is attributable to the fact that the district court allocated time
unevenly to the parties to present their cases. “It is generally recognized that
matters relating to the course and conduct of a trial, not regulated by statute or
rule, are within the discretion of the trial judge.” In re Marriage of Ihle, 577 N.W.2d
64, 67 (Iowa Ct. App. 1998). Consequently, we have recognized that the district
court has the inherent power to set reasonable time limits for trials. See id. (noting
the power to set reasonable time limits for a trial is an “inherent power” of the
district court). But time limits must “be allocated evenly so they are fair to both
sides of the case.” Id. at 68. Here, we have no difficulty in concluding that the
district court did not allocate the time at trial evenly between the parties. But Brian
has made no proffer of the evidence he would have presented—if time had been
evenly allotted—that would have contradicted the district court’s finding that he
placed the children in the middle of he and Nicole’s disputes about extracurricular
activities. Thus, we cannot conclude Brian was prejudiced. See id. at 69 (noting
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resistance to the activity, the children immediately resent her.” This finding is most

applicable to O.H., who prior to trial refused to participate in visitation with Nicole,

presumably because she did not allow him to attend a wrestling tournament in

Tulsa, Oklahoma on her parenting time. Such behavior by Brian is very

concerning. See In re Marriage of Walters, No. 11-1746, 2012 WL 2411183, at *3

(Iowa Ct. App. June 27, 2012) (“One parent’s actions which undermine the

children’s relationship with the other parent can be the triggering event for

modification.”).

The communication breakdown between the parties is also notable. We

need not repeat each party’s view on their communication difficulties but suffice to

say Brian and Nicole agree that they cannot effectively communicate with one

another concerning the children. And Brian is not without blame for the parties’

difficulties in communicating. A breakdown in parties’ communications concerning

their children has long been recognized as a ground for modification of physical

care. See In re Stanley, 411 N.W.2d 698, 701 (Iowa Ct. App. 1987) (“The

continued inability or unwillingness of parents to [communicate] is a factor in

determining if a custody modification is appropriate.”).

But despite these issues, we conclude modification is not appropriate in this

case for two reasons. First, we find it difficult to find a substantial change in

circumstances has occurred when Nicole engages in many of the same behaviors

she accuses Brian of. For example, Nicole has scheduled at least two medical

“it is equally incumbent upon the party seeking additional time to present evidence
to establish prejudice. We will not presume the existence of prejudice when
evidence is excluded from trial”).
12

appointments for E.H. and C.H.—over Brian’s objections—with a doctor who is a

personal acquittance of hers. She has also included the boys in her individual

counseling over Brian’s objections. And she unilaterally terminated the children’s

relationship with their previous therapist without consulting Brian.6

Additionally, Brian testified that he’s heard Nicole speak negatively about

him in front of the children. During his testimony, Brian added that Nicole once

included their son E.H. in a group text message conversation, in which they were

discussing whether he could attend a church camp. Further, Nicole admitted

during cross-examination that she has recorded the children without their

knowledge to help establish that Brian’s accusations against her are false. We

can hardly think of something that could place the children more in the middle of

these parents’ disputes.

And like the district court, we believe both parties bear responsibility for their

communication difficulties. Nicole does not have clean hands on this issue.

Concerning the breakdown in the parties’ communications, the district court wrote

“[Nicole] clearly suffers from some type PTSD or similar diagnosis. Consequently,

any actions or behaviors of [Brian] are often taken out of context or blown out of

proportion.”7 We defer to this observation concerning Nicole for pragmatic

reasons. See In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (noting

the district court is in a better position to make wise decisions in dissolution cases

because it observes and listens to the witnesses in person, whereas appellate

6 Nicole justified her decision to terminate the children’s relationship with this
counselor because the counselor was accused of impropriety with a client.
7 During the modification trial, Nicole testified that she suffers from PTSD.
13

courts “must rely on the printed record in evaluating the evidence”). In short, we

defer to the district court’s balancing of bad behaviors.

Second, we conclude Nicole did not carry her burden to establish that she

can offer superior care. Simply put, Nicole offered scant evidence concerning her

ability to offer superior care. In contrast, Brian offered the testimony of Ann

Olsen—his friend and neighbor—to help establish that he is the parent who can

offer superior care of the children. Olsen testified that Brian is an “excellent parent”

who is “very responsive to the emotional needs of the boys.” She added, “[h]e has

rearranged his entire life, including potentially getting married again, around these

kids to provide stability for them.” Olsen opined that a change in primary physical

care would be “devastating” to the children because they would be uprooted from

their community and support system.

The children have been placed under the primary physical care of Brian for

the past two years. We do not doubt that Nicole is a good parent and that she

loves the children, but it is in the children’s best interests that they continue to enjoy

the stability they have found with Brian. See Rolling v. Hoffman, No. 14-0102,

2014 WL 2600315, at *2 (Iowa Ct. App. June 11, 2014) (“In custody modification

cases, stability is the trump card.”).

This is unquestionably a close case. But the words of one of our former

colleagues are applicable in a case like this one. See Nelson v. Wieling, No. 04-

0135, 2004 WL 2002677, at *2 (Iowa Ct. App. Sept. 4, 2004) (Mahan, J., concurring

specially) (“This is the type of close case where this court should defer to the district

court decision.”). Accordingly, we conclude the district court did not err by denying

Nicole’s request for primary physical care of the children.
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2. Alteration of Summer Visitation Schedule

In the alternative, Nicole asserts the district court erred by eliminating her

midweek overnight visitation during the summer. She argues Brian did not

establish a material change in circumstances sufficient to warrant a modification

of the visitation schedule. We disagree.

“The showing required for modification of the visitation provisions of a

decree is less significant than the showing required to modify the custody and care

provisions of a decree.” In re Marriage of Yazigi, No. 13-1553, 2015 WL 1046129,

at *2 (Iowa Ct. App. Mar. 11, 2015). “The parent seeking to modify child visitation

provisions of a dissolution decree must establish by a preponderance of evidence

that there has been a material change in circumstances since the decree and that

the requested change in visitation is in the best interests of the children.” In re

Marriage of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994).

As an initial matter, we conclude Brian has established a material change

in circumstances sufficient to warrant a modification of the visitation provisions of

the decree. Based on the evidence at trial, it is evident that Brian and Nicole

cannot effectively communicate about the children. There was also evidence

suggesting the parents’ strife has negatively impacted the children. Brian testified

at trial that he and Nicole’s discord “just creates confusion” in the children’s minds.

Additionally, during a tense exchange between Nicole and Brian at one of C.H.’s

doctor’s appointments, C.H. “put his hands over his ears” and looked down at his

lap. And the evidence shows Brian and Nicole’s discord over the children’s

extracurricular activities has had a negative impact on Nicole’s relationship with

O.H. We believe such evidence establishes Brian and Nicole’s discord has
15

negatively impacted the children. Accordingly, there has been a material change

in circumstances. See In re Marriage of Rees, No. 04-1380, 2005 WL 975653, at

*2 (Iowa Ct. App. Apr. 28, 2005) (concluding a sufficient material change in

circumstances occurred due to the parents’ discord negatively affecting the

children’s lives).

We also conclude a modification to the summer visitation schedule is in the

children’s best interests. “Generally, liberal visitation is in the children’s best

interests as it maximizes physical and emotional contact with both parents.” Id.

However, the alteration to the summer visitation schedule made by the district

court does not dramatically reduce Nicole’s visitation with the children. Her

Wednesday night overnight visitation with the children remains intact during the

school year. And she will still receive an extended visitation with the children every

other weekend—beginning on Thursday’s—during the summer. She also still

retains five weeks of parenting time during the summer. The district court struck

a balance of preserving adequate parenting time for Nicole while attempting to

ease the discord between the parents. See id. (concluding the district court’s

modification of the visitation provision of a decree was in the children’s best

interests because it did not dramatically alter the father’s visitation time and was

designed to alleviate issues causing discord between the parents). Again, we

defer to the district court’s balancing of competing interests.

Thus, we conclude the district court did not err by eliminating midweek

overnight visits for Nicole during the summer.
16

B. Brian’s Cross-Appeal

1. Alteration of Summer Visitation Schedule

On cross-appeal, Brian contends the district court erred by not further

altering the summer visitation schedule to set a week-on/week-off schedule for him

and Nicole. He notes the parties have frequently had disagreements over

scheduling vacations around each other’s parenting time during the summers.

According to Brian, his proposed week-on/week-off schedule would minimize

disagreements between him and Nicole and better serves the children’s best

interests. We disagree.

As previously mentioned, the showing required for a modification to the

visitation provisions of a dissolution decree is less than showing for a modification

of physical care. Yazigi, 2015 WL 1046129, at *2. The party seeking modification

of the visitation provisions of a dissolution decree must establish that a material

change in circumstances has occurred and that the requested change is in the

children’s best interests. Salmon, 519 N.W.2d at 95–96.

For the reasons articulated above, we believe a material change in

circumstances has occurred to warrant a modification of the summer visitation

schedule. And we acknowledge that summer vacation planning under the current

arrangement has contributed to the communication breakdown between the

parties. However, Brian’s proposed schedule would only add to the discord. A

week-on/week-off in the summer will likely increase the interactions between

Nicole and Brian and potentially lead to the children being exposed to more of their

parents’ strife. The evidence shows the children have felt the negative effects of

their parents’ discord. Thus, the fewer exchanges the better. Because Brian and
17

Nicole have not shown they can effectively communicate for the sake of the

children, we cannot conclude a visitation schedule that will likely lead to weekly

interactions between them in the summer serves the children’s best interests.

Therefore, we find the district court properly denied Brian’s request for

week-on/week-off summer visitation schedule.

2. Trial Attorney Fees

Moving on, Brian contends the district court erred in awarding Nicole

$20,000 in attorney fees. He asserts that he largely prevailed on the issues at trial

and that Nicole did not prevail on her requests. Additionally, he asserts the fees

awarded were not fair and reasonable. Lastly, he asserts that because he

prevailed on most issues at trial, that the district court should have awarded him

trial attorney fees. We disagree with Brian and conclude the district court did not

err in awarding Nicole attorney fees. We also decline his request for trial attorney

fees.

In a modification action, the district court may “award the prevailing party

reasonable attorney fees.” Iowa Code § 600B.26 (2023). In considering whether

to award attorney fees in a modification action, the district court should consider

“the respective abilities of the parties to pay.” Christy v. Lenz, 878 N.W.2d 461,

469 (Iowa Ct. App. 2016) (citation omitted). Additionally, the district court may

consider whether the party resisting modification was successful. In re Marriage

of Michael, 839 N.W.2d 630, 639 (Iowa 2013). We have consistently emphasized

that awards of trial attorney fees “must be fair and reasonable.” In re Marriage of

Olson, 20-0399, 2021 WL 1904689, at *5 (Iowa Ct. App. May 12, 2021) (citation

omitted).
18

With these principles in mind, we conclude the district court did not abuse

its discretion in awarding Nicole $20,000 in trial attorney fees. Although Nicole did

not prevail on her request for primary physical care, we agree with the district court

that she largely prevailed at trial in defending the action. While Brian prevailed on

his requests to change the summer visitation schedule and his request to change

Nicole’s income for child support purposes—Nicole prevailed in defending against

Brian’s claims to modify the summer visitation schedule further, eliminate

Wednesday overnight visits during the school year, and change his income for

child support purposes.

Nor can we agree that the award of attorney fees to Nicole was unfair or

unreasonable. Brian argues that the attorney fee award was unreasonable

because Nicole originally did not submit an itemized attorney fee affidavit with her

request. See In re Marriage of Sanders, No. 22-1963, 2024 WL 2842310, at *7

(Iowa Ct. App. June 5, 2024) (“Because the court had no itemization in making this

large award, we cannot assess whether the fees awarded were ‘fair and

reasonable.’”). While it is true Nicole originally did not submit an itemized attorney

fee affidavit with her request for attorney fees, she did attach an itemized billing

sheet to her response to Brian’s amended rule 1.904(2) motion. And because the

district court ultimately ruled on Brian’s motion to enlarge and reconsider, we

conclude this effectively cured any defect in Nicole’s request for attorney fees.

Given the wide discretion the district court possesses in awarding trial

attorney fees, see Michael, 839 N.W.2d at 639, we cannot conclude the district

court abused its discretion by awarding Nicole trial attorney fees. And given that
19

Brian did not prevail on most of his requests at trial, we decline to conclude that

the district court should have awarded him trial attorney fees.

3. Income for Child Support

Brian also argues the district court erred in attributing $100,000 in gross

income to him for purposes of child support calculations. As a largely self-

employed individual, Brian claims the district court should have used a four-year

average of the income shown on his tax returns to arrive at a gross income figure.

He claims this is appropriate to do because his income has fluctuated “greatly over

the past four years from as a low as $17,259 annually to $62,306.” We disagree

and conclude the district court did not err in determining Brian’s gross income.

“We calculate a child support obligation using the child support guidelines.”

In re Marriage of Leff, No. 19-0038, 2020 WL 564901, at *2 (Iowa Ct. App. Feb. 5,

2020). To calculate the child support obligation, the district court should start by

determining the parties’ gross incomes. Iowa Ct. R. 9.14. A party’s gross income

is his or her “reasonably expected income from all sources.” Iowa Ct. R. 9.5(1).

“We must determine gross ‘income from the most reliable evidence presented.’”

Leff, 2020 WL 564901, at *2 (citation omitted). “Generally, the best evidence of

income comes from completed income tax returns.” In re Marriage of Sommerville,

No. 21-1672, 2023 WL 4521540, at *2 (Iowa Ct. App. July 13, 2023).

To begin our analysis, it is necessary to briefly provide some factual

background on Brian’s employment. Brian is employed as a realtor at a local real

estate firm in the Cedar Falls area. Additionally, he operates a small general

contracting business—BNKD Homes, LLC (BNKD). Brian is the sole shareholder

of BNKD. At trial, Brian’s tax returns from 2019 to 2022 were offered and admitted
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into evidence. Brian testified that a four-year average of his income from these

years amounted to an income of $37,000 a year.

With self-employed individuals, we often average their income over a period

of years due to the wide fluctuations in income they can experience. In re Marriage

of Cossel, 487 N.W.2d 679, 681 (Iowa Ct. App. 1992) (“To establish

[an] . . . income for a self-employed person or one who has fluctuating . . . income,

it generally is best to use an average of income from a period that accurately

reflects the fluctuations in income.”). But like the district court, we are highly

skeptical of the income figures Brian attempts to attribute to himself. Thus, we

have little faith that an average of the income figures from his tax returns from 2019

to 2022 will result in even a remotely accurate figure for his true gross income.

Despite Brian’s purported modest income, evidence was presented at trial that

Brian spent over $57,000—in both 2022 and 2023—in just credit card payments.

And Brian testified at trial that he is generally conservative with his finances and

does not spend money he does not have. There was also evidence presented at

trial that Brian deposited significant amounts of money into his personal bank

account from 2021 to 2023.

For example, the evidence shows Brian deposited nearly $125,000 in his

personal account throughout the year in 2021. In 2023, he deposited into his bank

account a total of $114,456. Brian also admitted to purchasing a $85,000 boat in

2022. And he estimated at trial that his monthly expenses totaled roughly $6700.

It does not take a mathematician to see that the numbers do not add up. In

rejecting Brian’s requests to utilize his income—as stated on his tax returns—and

to average such income, the district court stated his “income simply does not
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comport with the lifestyle in which he lives.” Given the evidence before us, we

share this belief and cannot conclude the district court erred on this ground. See

In re Marriage of Claar, No. 05-0174, 2006 WL 334219, at *3 (Iowa Ct. App. Feb.

16, 2006) (concluding income figures from the parties’ tax returns were “of little

value in calculating child support” because of the comfortable lifestyles they lived).

Instead of consulting Brian’s tax returns and averaging his income, the

district court determined Brian’s gross income to be $100,000. It is not entirely

clear how the district court came up with this income figure. In all likelihood, the

district court came up with this figure based off Brian’s loan application from 2022

to purchase his boat. In this application, which was admitted at trial, Brian listed

his gross income as $100,000. Brian attempted to downplay this evidence at trial,

testifying that a loan officer filled out the application for him. But the district court

expressly found this testimony to not be credible. And we defer to the district court

on witness credibility determinations. See Hoffman, 867 N.W.2d at 32. Given the

evidence in this record, we believe $100,000 is a reasonable figure for Brian’s

gross income.

Consequently, we find the district court did not err in determining Brian’s

gross income to be $100,000 for child support calculations.

C. Appellate Attorney Fees

Finally, Nicole and Brian each request that we award them appellate

attorney fees. An award of appellate attorney fees is not a matter of right but rests

in this court’s sound discretion. In re Marriage of Towne, 966 N.W.2d 668, 680

(Iowa Ct. App. 2021). “In determining whether to award appellate attorney fees,

we consider ‘the needs of the party seeking the award, the ability of the other party
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to pay, and the relative merits of the appeal.’” In re Marriage of McDermott, 827

N.W.2d 671, 687 (Iowa 2013) (citation omitted).

After considering these factors, we decline to award either party appellate

attorney fees.

IV. Conclusion

In sum, we affirm the district court’s modification order in full.

AFFIRMED ON APPEAL AND CROSS-APPEAL.