Michael Konzen v. Emalee Goedert

IN THE COURT OF APPEALS OF IOWA

No. 14-1081
Filed July 9, 2015

MICHAEL KONZEN,
Plaintiff-Appellant,

vs.

EMALEE GOEDERT,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, David F. Staudt,

Judge.

A father appeals the court’s refusal to modify the physical care provisions

of the custody decree. AFFIRMED.

Matthew L. Noel of Mayer, Lonegran & Rolfes, Clinton, for appellant.

Nathan Legue and Catherine Zamora Cartee of Cartee & McKenrick, P.C.,

Davenport, for appellee.

Heard by Vogel, P.J., and Potterfield and Mullins, JJ. Bower, J. takes no

part.
2

VOGEL, P.J.

Michael Konzen appeals the district court’s decision, which denied his

petition to modify the physical care provisions of the custodial decree. He

maintains that he should have physical care of his two daughters, while the

mother, Emalee Goedert, should have supervised visitation. At a minimum, he

claims he should not have been ordered to have only supervised visitation. He

also claims the district court incorrectly determined his child support obligation.

On our de novo review, with appreciation for the district court’s extensive

credibility determinations, we affirm the district court’s modification decision and

its determination as to the current amount of child support due.1

I. Background Facts and Proceedings.

Michael and Emalee are the parents of two daughters, age nine and

seven at the time of the modification trial. The parties never married, though they

were engaged for a brief time, and they lived together until November of 2009,

when allegations surfaced that Michael was sexually abusing the girls. Emalee

moved out of the house, and a department of human services (DHS)

investigation was undertaken. An examination of the girls did not reveal any

physical signs of abuse, though both girls told investigators that Michael “poked”

them in the crotch and they were “not supposed to tell.” The DHS investigation

1
Emalee, through counsel, moved for leave to amend the appendix filed in this case,
noting pages from the district court’s November 2, 2010 decision were missing from the
appendix. Emalee sought leave to file a supplemental appendix that included the full
November 2, 2010 district court ruling. Having considered the record in this case, we
grant the motion and consider the supplemental appendix to be filed as of the date the
motion was filed.
3

resulted in a “founded” determination, but that decision was appealed, and after

Michael negotiated with the State, the finding was changed to “not confirmed.”

During the pendency of the DHS investigation, Michael filed an action for

physical care of the children. In response, Emalee sought a temporary

injunction, which issued on February 18, 2010, preventing Michael from seeing

the children. Michael sought to dissolve or vacate this injunction, but after a

hearing, the court denied Michael’s request on April 9. However, on April 26,

2010, the court entered a stipulated order on temporary matters, which provided

the parties would engage in therapeutic reunification between the children and

Michael through a counselor. It also set the child support at $694.00 per month.

The case proceeded to a trial in October 2010; however, before the trial

was complete, the judge urged the parties to settle, and after meeting with the

parties, a judge-mediated settlement occurred. The court memorialized the

parties’ agreement in an order filed November 2, 2010. In the order, the court

provided that Emalee would have physical care subject to Michael’s visitation.

The court also determined Michael was required to pay child support and ordered

the parties to submit income information for the court to calculate the appropriate

amount of support under the guidelines, after which the order would be

amended. The court entered a separate visitation order that outlined how the

children were to be reintroduced to Michael—through therapeutic reintegration

with Andrea Beacham, J.D.—and Michael was to receive individual counseling

with Marc K. Wruble, Ph.D. After the first meeting between Michael and the

children, Ms. Beacham was to set a schedule for future visits. The court stated

the order was to memorialize the parties’ agreement and “address initial visitation
4

issues that are expected to be reassessed at a later point in time.” The court

directed the therapists to present the court with a report at the expiration of the

services, or at a minimum in three months.

The court entered a separate order on December 20, 2010, entitled,

“Addendum to Judgment re: Custody and Visitation,” in which the court—as

anticipated in the November 2 order—calculated then set Michael’s child support

obligation at $555.00 per month. It further provided the percentage of uncovered

medical expenses for the children that each parent was obligated to cover.

After receiving reports from Ms. Beacham and Dr. Wruble, the court filed a

subsequent order on April 22, 2011, which provided it was an “addendum to the

Court’s previous orders regarding custody, visitation, and child support. It shall

serve as the final order regarding the petition filed herein.” The court ordered all

counseling sessions for the children would cease, all interactions between the

children and Emalee’s mother2 would be subject to the agreement of the parties

and supervised by Emalee, the parties would now share physical care of the

children equally, and no child support would be paid.

When the district court denied Emalee’s posttrial motion, she appealed,

and the appeal was transferred to this court. See Konzen v. Goedert, No. 11-

1028, 2012 WL 1859931, at *1 (Iowa Ct. App. May 23, 2012). Finding the judge

should have recused herself and refrained from issuing further orders involving

this family after participating in settlement negotiations, our court “vacated all the

2
It was Emalee’s mother who first brought the sexual abuse allegations made by the
children to Emalee’s attention, and Michael insists that the maternal grandmother
planted the abuse allegations in the children’s minds.
5

orders and judgments issued after the October 26 settlement conference—

except the November 2, 2010 ‘judgment re: custody and visitation.’” Id. at *4.

During the pendency of the appeal and before procedendo was issued,

the parties continued to operate under the district court’s April 22 order providing

for joint physical care. Procedendo was issued on August 29, 2012, after the

supreme court denied further review. Physical care of the parties’ children

returned to Emalee, who denied Michael contact with the children, assuming the

November 2 order providing supervised visitation was to be followed. On August

31, 2012, Michael filed an “Emergency Application for Visitation and Physical

Care.” After a hearing, the court denied the application in December 2012,

finding it lacked jurisdiction but noted the parties had agreed to voluntary

supervised visitation between Michael and the children. It was noted in the order

that Michael would be filing a petition to modify the physical care provisions of

the November 2, 2010 order, and Michael did file his petition for modification of

custody, child support, and visitation on February 14, 2013.

During the pendency of the modification action, counsel for Emalee also

filed a notice to withhold income for child support, putting Michael’s employer on

notice that the current monthly support obligation was $555.00 and past due

support of $111.00 monthly should also be withheld, for a total monthly obligation

of $666.00. However, Michael was laid off from his job in May of 2012, so the

support obligation was taken out of his unemployment benefits until those ran

out. After losing his benefits, Michael worked for his cousin on a cash basis

doing various jobs, and Michael failed to pay any further amount towards child

support up to the point of the modification trial.
6

Michael’s modification petition proceeded to a seven-day trial in January

and February 2014. The court issued its decision June 4, 2014. In that decision

the district court stated:

It should be noted for the record that the parties agreed,
given the unique nature of the procedural history of this case, that
evidence of events that occurred prior to the final ruling issued by
Judge Ackley shall be considered in reaching a decision on this
petition for modification. Both parties acknowledge that it is
typically the rule that events occurring prior to the decree or final
order in family law cases will not be considered at the time of trial
on a petition for modification. Here, the parties have agreed that
the Court should take into consideration the events that led up to
the final order entered by Judge Ackley on November 2, 201[0].
The court has agreed to listen to evidence concerning events prior
to the November final order as it seems apparent that the history of
this couple requires a review of their situation as a whole. The
court does intend to rule as to whether a substantial change in
circumstances has occurred since the November order utilizing
some evidence that occurred prior to November 2, 201[0].

After reviewing all the evidence presented and making extensive credibility

findings, the district court denied Michael’s petition, concluding “[Michael] has

failed to prove that there has been a substantial change in circumstances since

the entry of the original decree.” In addition, the court found “that [Michael] has

failed to show that joint physical care would be an appropriate modification even

if he had shown that a substantial change in circumstances had occurred.”

While the court rejected Michael’s attempt to modify the physical care of

the children, the court did modify the visitation arrangement to provide that future

visitation between Michael and the children will be supervised by a relative of

Michael’s within the third degree of consanguinity. At no time were the children

to be left in Michael’s care without supervision. The court set a schedule for

Michael’s visitation to include Wednesday evenings, alternating weekends (the
7

order provided the children can stay overnight with Michael’s mother or another

relative of Michael’s that Emalee approves of and Michael is not allowed to stay

overnight or participate in bed time3 or bath time4 activities), and alternating

holidays. The court warned any violation of the visitation conditions would be

“met with severe sanctions.” The court denied trial attorney fees and found

Michael had willfully and intentionally failed to pay his child support obligation

since the entry of the prior court of appeals’ opinion.

From this order Michael appeals.

II. Scope and Standard of Review.

Because a petition to modify the custodial provisions of a prior decree is

heard in equity, our review is de novo. Melchiori v. Kooi, 644 N.W.2d 365, 368

(Iowa Ct. App. 2002). Precedent has little value as we must evaluate the appeal

in light of the unique circumstances of each case. Id. However, we do give

deference to the district court’s factual findings, especially its credibility

determinations, “[b]ecause [the] trial court was present to listen and observe the

witnesses.” In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Our

paramount consideration is the best interests of the children involved. In re

Marriage of Hoffman, ___ N.W.2d ___, ___, 2015 WL 2137550, at *4 (Iowa

2015).

3
The children had alleged that Michael would touch their “private parts” when he would
scratch their backs as he put them to bed.
4
There were allegations that Michael would shower or bathe with the children and that
everyone would be naked.
8

III. Physical Care and Visitation.

The law guiding the modification of the physical care provisions of a prior

decree is well-established in Iowa:

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.

Id. at *5. It is a heavy burden for the person seeking modification to carry

because “once custody of children has been fixed it should be disturbed only for

the most cogent reasons.” Id.

Michael contends the evidence he presented was sufficient to satisfy the

standard to modify the prior decree to place the children in his physical care and

order Emalee to receive counseling regarding her attitude toward the children.

He points out he testified to Emalee’s mother’s interference and “meddling” in his

and Emalee’s lives and the mother’s false allegations in the past regarding their

care of the children. The court discounted Michael’s testimony regarding the

interference of Emalee’s mother in light of the fact that neither party called the

mother to testify at trial and no expert evaluating this case ever spoke with

Emalee’s mother. There was also no independent evidence the children were

persuaded or coerced by Emalee’s mother or anyone else to make false

accusations of sexual abuse against Michael. The court would have had to
9

accept Michael’s word alone that such a plot existed against him, and the court

had already concluded Michael lacked credibility.

Next, Michael directs our attention to the expert testimony he offered from

Dr. Wruble, Ms. Beacham, William S. Logan, M.D., and Carroll D. Roland, Ph.D.

Dr. Wruble and Ms. Beacham provided services to Michael and the children

following the November 2, 2010 decree. Dr. Wruble provided counseling to

Michael and Ms. Beacham supervised the visits between Michael and the

children. Ms. Beacham testified she never saw any fear or apprehension from

the children when in Michael’s presence as she would expect if there had been

sexual abuse. However, the district court appointing Ms. Beacham to the case

directed that she was not to assess the credibility of the allegations or discuss

the allegations with the children as this was to be left to the children’s therapists.

Dr. Wruble did not do a full workup on Michael’s risk of sexually offending,

but he did perform a screening assessment. Based on the testing that was

performed, Dr. Wruble determined Michael had a very low risk of sexual

offending. Dr. Wruble did meet with Michael and the children on six or seven

occasions and did not see any behaviors in the children that caused him any

concern, nor did he see any kind of grooming behavior by Michael. But again, it

was not within his assignment from the court to ascertain the veracity of the

children’s allegations. Dr. Wruble did disagree with the victim-based counseling

that had been provided to the children through the DHS because it starts with the

assumption the abuse occurred. He would instead suggest safe-harbor

counseling for the children.
10

Michael hired Dr. Logan, who performed a sexual offender evaluation

based on an interview with Michael and a review of the relevant information in

this case. Dr. Logan found no indication that Michael had a history of sexual

offending or would be likely to commit incest with his daughters. He also offered

his evaluation of the DHS interviews with the children and indicated he thought

the children’s responses were rehearsed or coached, or the interviews were

conducted improperly. Again, Dr. Logan never met Emalee or her mother, or the

children in this case.

Finally, Michael directs us to the testimony from Dr. Carroll Roland, whom

the district court appointed in this modification trial to do an assessment of the

children’s mental health and make a recommendation as to whether counseling

was required, and if so, what type of counseling. Dr. Roland concluded the

children were not in need of on-going counseling and concurred in Dr. Wruble’s

concern about victim-based counseling. Dr. Roland conducted testing on the

children to determine their parent of choice at two different times during the

pendency of this case. While the younger child consistently chose Emalee at

both testing periods, the older child’s scores showed a deterioration in her

relationship with Michael between the testing periods. Dr. Roland surmised this

was likely due to limited contact with Michael, continued victim-based counseling,

and degrading comments by Emalee’s family. While Dr. Roland stated this

pattern would likely continue if the current custody arrangement remained

unchanged, he did not recommend shared care in light of the likelihood of future

allegations of sexual abuse.
11

Dr. Roland also gave both parents the Minnesota Multiphasic Personality

Inventory test to measure mental health and both results were in the normal

range. In addition, Michael was given a child abuse potentiality test, which

measures the extent to which he identifies with characteristics similar to those

who are known to physically abuse, but not sexually abuse, children, and the

results indicated he did not have significant indications of characteristics similar

to known child abusers.

Michael essentially argues that the district court ignored the vast weight of

the evidence when it denied his modification petition. He claims his evidence

was based on independent observations by highly qualified professionals, some

of whom were appointed by the court, and this evidence demonstrates that he

did not have any sexually inappropriate contact with his children and the

children’s current environment is toxic.

The district court did criticize Michael’s experts for relying solely on reports

and conclusions provided by Michael and for failing to meet with Emalee or her

mother. Because the court disagreed with Michael’s contention that Emalee’s

mother had masterminded the sexual abuse allegation, the court disregarded the

experts’ concerns about victim-based counseling. Because of the lack of

evidence to support a plot to fabricate the allegations and because the court

concluded the children were continuing to show the effects of the abuse they

alleged, the court ordered continued counseling for the children per the DHS

recommendation. Ultimately, the court’s decision, and its rejection of the opinion

of these experts, boiled down to the court’s determination that Michael’s

testimony lacked credibility.
12

The court found Michael was untruthful when it came to reporting his

income following his May 2012 job loss, and the court was troubled by Michael’s

refusal to pay child support. The court found Michael’s explanation regarding a

2008 incident at Wisconsin Dells, at which Emalee’s niece accused Michael of

inappropriately touching her, lacked credibility.5 The court found the niece’s

testimony, along with the testimony of the niece’s friend and family members, to

be consistent, credible, and truthful. The court also concluded Michael lied to the

investigating police officer who questioned him about this incident during the

DHS investigation.

The court concluded Michael was lying regarding the incident in which the

older child stated Michael showed her portions of her interview at the child

protection center and then berated her about the statements she made in the

interview. While the court noted Michael did voluntarily submit to and pass a

polygraph examination as to allegations made by the youngest daughter, the

court found Michael failed to acknowledge to the examiner that he had two

daughters and polygraph examinations are unreliable. Finally, the court noted

Michael’s testimony regarding his involvement with his new girlfriend, who had

5
In August of 2008, Michael, Emalee, and the children attended a family vacation in
Wisconsin Dells with Emalee’s family. Emalee stayed at the condominium with the
children, while Michael went to the waterpark with some of Emalee’s family including
Emalee’s eleven-year-old niece and the niece’s friend. The niece alleged that while the
group was waiting in line for a ride, she repeatedly felt Michael’s fingers in the back of
her swimming suit, which made her uncomfortable, and she tried to inch away. Also,
while in line, the niece testified Michael told her the two of them should sneak into the
hot tub alone that night after hours. The niece also remembered Michael making a
comment about liking all “pussies.” On the way back from the waterpark, the niece
testified Michael aggressively slapped her butt, and her friend, who witnessed the
slapping thought the act was sexually suggestive. The niece told her friend about the
comments and the friend became scared and called her father to come pick her up.
Michael was asked to leave, and he, Emalee, and the children left that night.
13

just turned eighteen when she moved into Michael’s house after knowing him for

a short period of time, lacked credibility.6 The court concluded it was clear

Michael had been providing his underage girlfriend with alcohol and both of them

had attempted to mislead the court into believing that their romantic relationship

did not begin until after the girlfriend moved into Michael’s home.

Conversely, the court found Emalee’s testimony very credible, particularly

her testimony that the period of shared physical care when the case was

previously on appeal did not go well. The children made additional accusations

of sexual abuse during this period, and Emalee testified Michael was

manipulative and controlling. The children’s school principal and the younger

child’s teacher testified that in December 2013 the younger child told her teacher

that she had to go see her dad the next day and that “he was going to ‘F’ her.”

One of the counselors the girls saw following the termination of the joint physical

care arrangement testified the older girl reported Michael was again

inappropriately touching her. The girls’ counselors, based on their therapy with

the children, were uncomfortable with Michael having unsupervised contact with

the children. In addition, another one of the children’s counselors, Jennifer

Hoyer, testified that the children displayed violent or aggressive play when the

topic of Michael was brought up. After meeting with the children on a number of

occasions, Hoyer testified she told the parties that she now believed that sexual

abuse had occurred.

6
The court also found that Michael’s girlfriend’s testimony regarding her relationship with
Michael, lacked credibility.
14

Ultimately, the court determined Michael had not satisfied the heavy

burden to justify modifying the physical care of the children—specifically

concluding Michael did not prove a substantial change in circumstances.

Since the entry of the decree, the only evidence of change would
be the joint physical custody participated in by the parties prior to
the Court of Appeals’ opinion. The court finds [Michael’s] testimony
to be less than credible. It was obvious to the Court that at times
he was misleading and lying to the Court. His testimony
concerning his version of any occurrences concerning the custodial
relationship during the joint physical care period would be found to
be less than credible. [Emalee’s] testimony was very credible
concerning all of the events which would include the joint physical
custody period. [Emalee] testified that joint physical custody period
as having not worked very well. The Court finds that [Michael] has
failed to show that joint physical care would be an appropriate
modification even if he had shown that a substantial change in
circumstances had occurred.

We agree with the district court’s assessment. The conditions that existed

between the parties at the time of the modification trial are the same that existed

at the November 2, 2010 order. Sexual abuse allegations had been made

against Michael, and Michael vehemently denies the allegations. The children

continue in therapy to help them deal with issues surrounding the allegations.

The only changes that have occurred include a brief period of joint physical care

while the prior appeal was pending and Michael’s new relationship with his live-in

girlfriend. The court found Michael’s testimony that the period of joint physical

care went well to lack credibility and likewise discredited Michael’s and his

girlfriend’s testimony regarding their living arrangement.

A trial court deciding dissolution cases is greatly helped in making a
wise decision about the parties by listening to them and watching
them in person. In contrast, appellate courts must rely on the
printed record in evaluating the evidence. We are denied the
impression created by the demeanor of each and every witness as
the testimony is presented.
15

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation and internal

quotation marks omitted). Accepting the district court’s credibility assessments,

as we must due to the district court’s ability to see and assess the testimony first-

hand, we agree there has not been a substantial change in circumstances to

justify modifying the physical care in this case.

Michael also claims the court should have, at least, ordered unsupervised

visitation. With respect to modifying the visitation conditions of a prior decree,

the party seeking the modification must prove “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 Brown, 778

N.W.2d 47, 51–52 (Iowa Ct. App. 2009). This is a less demanding burden and

requires a less extensive change in circumstances to justify the modification. Id.

at 51.

Here, the district court did find Michael satisfied the burden to modify the

visitation arrangement:

At the time the decree was entered, supervised visitation with
nonfamily members was the contemplated result. [Michael] has
successfully participated in supervised visitation both following the
entry of the original decree and since the filing of the Court of
Appeals’ opinion. The court does conclude, however, that during
the period of joint physical custody in which [Michael] was left alone
with the minor children, allegations surfaced of continued
inappropriate behavior. The testimony from various therapists and
counselors reflects that the children remain affected by the abuse
they allege. Their statements during counseling reflect their
continued awareness of abuse. The record reflects that at the very
least [Michael] has behaved appropriately with his children when
supervised. The court believes that the supervision could be
provided by family members of [Michael]. The court has no reason
to believe that [Michael’s] family members have any desire to
violate a court order. The court does find that a material change in
circumstances has occurred concerning visitation. The material
16

change being that [Michael] has successfully participated in therapy
and counseling and has successfully participated in supervised
visitation for an extended period of time. The court finds that it
would be in the best interests of the children to be allowed visitation
with their father supervised by relatives of [Michael] at all times.

Michael claims he should be granted unsupervised visitation because there has

not been a founded abuse report against him and he has participated in

numerous supervised visits with no incidents. He claims there should be at least

a way that he can progress to unsupervised visitation. He asserts there is just no

evidence to justify ordering the visits to be supervised “for the next 11 years.”

We again defer to the district court’s finding of fact that things did not go

well when Michael was allowed unsupervised time with the girls during the period

of joint physical care when the prior appeal was pending. New allegations of

sexual abuse surfaced, and the district court determined Emalee was credible in

her description that Michael became manipulative and controlling. We thus

conclude that the district court was correct in determining unsupervised visitation

would not be in the children’s best interests.

IV. Child Support.

Next, Michael claims the district court was incorrect when it determined

Michael was under an obligation to pay child support in the amount of $555.00

per month. Michael notes that the November 2, 2010 order did not specifically

provide for any amount of child support, instead stating that Michael was to pay

child support “in an amount to be determined.” The court went on to require the

parties to submit their most recent paystub with an affidavit so that the court

could calculate the child support guideline amount. The order requiring Michael

to pay $555.00 monthly in child support was not filed until December 20, 2010.
17

Because the prior court of appeals decision vacated all orders after the

November 2, 2010 judgment re: custody and visitation order, Michael contends

he cannot be required to pay $555.00 per month.

The only other order of the court establishing child support was filed April

26, 2010, in the “Stipulated Order on Temporary Matters.” In this order the child

support amount was set at $694.00 per month. Michael contends, however, that

the November 2, 2010 order ceased any temporary child support order. Thus, he

maintains that he has not had a child support obligation since the court entered

the November 2, 2010 order.

Emalee first contends Michael did not preserve error on this claim

because he failed to file a motion under Iowa Rule of Civil Procedure 1.904(2)

when the district court failed to address this claim in the modification decision.

Because we conclude the district court did address this claim in its modification

decision, we reject Emalee’s error preservation argument.

She also claims when the prior appeal decision vacated all orders entered

after November 2, 2010, Michael’s child support reverted to the temporary order

amount of $694.00 per month established in the order on temporary matters as

this child support order remained in effect having been field before the November

2 order.

With respect to temporary orders, Iowa Code section 600B.40A (2013)

provides:

Upon petition of either parent in a proceeding involving
support, custody, or visitation of a child for whom paternity has
been established and whose mother and father have not been and
are not married to each other at the time of filing of the petition, the
court may issue a temporary order for support, custody, or visitation
18

of the child. The temporary orders shall be made in accordance
with the provisions relating to issuance of and changes in
temporary orders for support, custody, or visitation of a child by the
court in a dissolution of marriage proceeding pursuant to chapter
598.

Iowa Code section 598.11(2) provides for temporary orders to “continue in force

and effect until the action is dismissed or a decree is entered dissolving the

marriage.” In support of her claim that Michael’s support amount reverted to the

amount set in the temporary order, Emalee cites to the case of In re Marriage of

Wagner, 604 N.W.2d 605, 610 (Iowa 2000), where the supreme court determined

a temporary spousal support order was reinstated when the final decree was

vacated. However, this case is factually distinguishable since here the decree of

November 2, 2010, was not vacated in the prior appeal decision but was the only

order left standing.

By entry of the November 2, 2010 order, the temporary child support order

was no longer enforceable prospectively, though it was enforceable for the child

support that had accrued to that point. Bork v. Richardson, 289 N.W.2d 622, 624

(Iowa 1980) (“[N]o new obligations will accrue under the temporary order after

dismissal or decree; it does not proscribe the collection of such amounts already

accrued.”). Therefore, the temporary order cannot be relied upon to set

Michael’s child support obligation following the November 2 order.

However, the November 2, 2010 order did established an obligation for

Michael to pay child support:

Petitioner, Michael Konzen, shall be required to pay child support
for the benefit of the minor children in an amount to be determined.
The parties shall submit, within thirty days, the parties’ most recent
paystubs to the Court with an affidavit as to statutory deductions
permitted for purposes of calculating the incomes on the Supreme
19

Court guidelines. Once the Court receives the information, this
judgment will be amended to represent the appropriate amount of
support.

(Emphasis added.) This order remained in effect following the prior appeal, and

therefore, Michael’s contention that he has not owed child support since the

November 2 order is wholly unfounded. Michael’s obligation to pay child support

was established when this judgment was entered. The fact the record simply

lacked current paystub information, such that the mathematical computation

could not be completed at that time, does not take away from the order’s

enforceability.

The court’s direction for the parties to submit their paystubs and affidavits

was simply the mechanism the court used to obtain the required information so

that the specific amount could be calculated. The court gave the parties time to

comply with providing the necessary evidence. Calculating the amount due was

simply a matter of plugging the income figures of the parties into the statutory

formula and supplementing the November 2 judgment with the missing figure.

We agree with the district court’s conclusion in the modification decree

that Michael owed $555.00 per month starting November 2, 2010, except for the

period of shared physical care. We therefore affirm that portion of the district

court’s decision.

V. Appellate Attorney Fees.

Emalee requests appellate attorney fees. The award of appellate attorney

fees rests in our discretion, and we consider “the needs of the party making the

request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the trial court’s decision on appeal.” In re
20

Fiscus, 819 N.W.2d 420, 425 (Iowa Ct. App. 2012). We also consider the

relative merits of the appeal. In re Marriage of Okland, 699 N.W.2d 260, 270

(Iowa 2005). In light of Emalee’s obligation to defend the district court’s

modification decision and the merits of the appeal, we award her $18,000 in

appellate attorney fees.

VI. Conclusion.

In light of the district court’s extensive credibility determinations, we affirm

the custodial and visitation provisions of the modification decree. We also affirm

the district court’s decision concluding Michael is obligated to pay child support in

the amount of $555.00 per month, except for the period of joint physical care.

Emalee is awarded $18,000 in appellate attorney fees.

AFFIRMED.