In re the Marriage of Krueger

IN THE COURT OF APPEALS OF IOWA

No. 17-1817
Filed June 6, 2018

IN RE THE MARRIAGE OF SCOTT J. KRUEGER
AND ELYSE S. KRUEGER

Upon the Petition of
SCOTT J. KRUEGER,
Petitioner-Appellant/Cross-Appellee,

And Concerning
ELYSE S. KRUEGER,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Hardin County, James A. McGlynn,

Judge.

The father appeals from the district court’s decree of dissolution of marriage,

which awarded physical care of their children to the mother and visitation time to

him. The mother cross-appeals the calculation of child support. AFFIRMED AS

MODIFIED AND REMANDED.

Judith M. O'Donohoe of Elwood, O'Donohoe, Braun & White, L.L.P.,

Charles City, for appellant.

Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin, L.L.P., Boone,

for appellee.

Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

Scott Krueger appeals from the decree dissolving his marriage to Elyse

Krueger. He argues the district court erred in declining to grant joint physical care

and in establishing the visitation schedule. Elyse requests appellate attorney fees,

and she cross-appeals, claiming the district court erred in calculating child support.

We find the district court’s factual determinations are supported by the record, and

we affirm the physical care award and the visitation schedule. We also find Elyse

is entitled to partial appellate attorney fees, and we agree with her on the child

support calculation. Accordingly, we affirm as modified and remand for further

proceedings.

Scott and Elyse Krueger married in March 2009. The marriage produced

two children. On November 16, 2016, Scott filed the petition for dissolution of

marriage. Trial was held on August 22 and 23, 2017. On October 3, the district

court entered the decree of dissolution, which accepted most of the parties’

stipulations, granted joint legal custody of the children, placed physical custody of

the children with Elyse, established a schedule for visitation with Scott, and

ordered child support.

We review dissolution cases de novo, giving “weight to the trial court’s

factual findings, especially with respect to the credibility of the witnesses.” In re

Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Questions of physical care

are based upon the best interest of the child. In re Marriage of Hansen, 733

N.W.2d 683, 696 (Iowa 2007).

Scott claims the district court should have granted the parties joint physical

care of the children. The statutory factors in Iowa Code section 598.41(3) (2016)
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“as well as other facts and circumstances are relevant in determining whether joint

physical care is in the best interest of the child.” Id. After rejecting joint physical

care as not being in the best interests of the children, the district court granted

physical care to Elyse. It noted the strengths of each party, and it was “convinced

that each parent loves their children and each parent is capable of providing the

necessary nurturing for the children.” The court also noted the weaknesses of

each party. “Scott has demonstrated that he has a temper, that he can be

controlling and that he does not consider Elyse to be a co-equal parenting

authority.” Elyse has “developed some history of being a vindictive parent who is

willing to withhold visitation from the other parent as punishment for

transgressions.” The district court was in the best position to see and hear the

parties first-hand, and to note each party’s attitude, compassion, tone of voice, and

other qualities. See Witten, 672 N.W.2d at 773. After reviewing the entire record,

including the testimony of all witnesses, we are convinced the district court properly

considered all factors in making physical care and visitation decisions in the best

interest of the children. We affirm the decree regarding physical care and visitation

without further opinion. Iowa Ct. R. 21.26(1)(a), (b), (d), (e).

Regarding child support, Elyse argues, and Scott agrees, the district court

improperly deducted Scott’s IPERS contributions when calculating his child

support obligation. See Iowa Ct. R. 9.5(3) (allowing a deduction for “mandatory

pension deductions not to exceed the current Social Security and Medicare tax

rate for employees”). We agree with the parties, and we remand to the district

court for the sole purpose of recalculating child support, using the income figures

already submitted, without the deduction of Scott’s IPERS contributions.
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Finally, Elyse requests appellate attorney fees. Appellate attorney fees are

within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643,

646 (Iowa 1996). “In determining whether to award appellate attorney fees, 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

decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,

852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389

(Iowa Ct. App. 1997)). The district court considered Scott’s significantly higher

income and ordered him to pay $2,500 of her attorney fees. Due to Scott’s greater

income and the fact Elyse mostly prevailed on appeal, we order Scott to pay $2,500

of Elyse’s appellate attorney fees as well.

AFFIRMED AS MODIFIED AND REMANDED.