Benjamin John Jass v. Carrie Marie Atkinson n/k/a Carrie Marie Van Hugten

IN THE COURT OF APPEALS OF IOWA

No. 18-1790
Filed June 5, 2019

BENJAMIN JOHN JASS,
Plaintiff-Appellant,

vs.

CARRIE MARIE ATKINSON n/k/a CARRIE MARIE VAN HUGTEN,
Defendant-Appellee.
________________________________________________________________

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

Judge.

A father challenges surname, visitation, transportation, child support, and

tax credit issues in a decree issued under Iowa Code section 600B.40 (2017).

AFFIRMED AS MODIFIED.

Christy R. Liss and Joshua L. Christensen of Clark, Butler, Walsh &

Hamann, Waterloo, for appellant.

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

Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2

TABOR, Judge.

A few days before his son, J.C.,1 was born, Benjamin Jass petitioned to

establish paternity, custody, visitation, and child support under Iowa Code

section 610B.40 (2017). The district court issued a decree granting joint legal

custody and placing physical care with the child’s mother, Carrie Van Hugten.2 On

appeal, Benjamin does not challenge the physical-care arrangement. Instead, he

seeks a change in the child’s surname, expanded visitation, shared transportation,

decreased child support, and alternating tax benefits.

Because our de novo review leads us to the same conclusions as the district

court’s thorough and well-reasoned decree, we affirm—with a minor modification

to the duration of the child-care expense variance from the support guidelines. On

the issue of attorney fees, we find no abuse of discretion in the district court’s

award of $12,500 toward Carrie’s trial representation, but we decline to award

appellate attorney fees on top of that amount.

I. Facts and Prior Proceedings

Carrie and Benjamin met on Match.com in October 2016 and dated for

about five months. They broke up a few days before Carrie learned she was

pregnant. J.C. was born in October 2017. Because paternity had not yet been

established, Carrie did not list a father on the birth certificate. She also gave the

child the surname Van Hugten. Carrie is an active-duty major in the United States

Marine Corps, earning $123,836 per year, plus sustenance and housing stipends.

1
We use the child’s first two initials for clarity’s sake when we reach the surname issue.
2
Carrie is still known professionally by the surname Atkinson, though she legally changed
her last name to Van Hugten in September 2017.
3

Based on a service-limitation rule, she must retire from the Marines on April 1,

2020.

From 2014 through 2016, Carrie was married to Leon Van Hugten, a

member of the Dutch Army.3 She and Van Hugten, who still lives in the

Netherlands, had three children together—twins born in 2015 and a daughter born

in 2016. The twins arrived prematurely; one died in the hospital and the other has

special health issues. Those children all have the surname Van Hugten. Carrie

and the children live in Newton.

Benjamin had also been married; his wife died of cancer in August 2016.

They had two sons, who were aged five and nine at the time of the hearing in this

case. Benjamin remarried in June 2018 to Kathryn, whom he met in the summer

of 2017 on a “Facebook widow group.” Kathryn brought two daughters, ages ten

and thirteen, to the Jass household. Benjamin works as a special education

teacher in the Iowa Falls-Alden school district, earning $63,282 per year. He also

earns an additional $2249 a year from coaching tennis and $6073 from the farm

he operates with his father.

In early October 2017, Benjamin filed a petition requesting DNA testing to

confirm his paternity of the baby Carrie expected to deliver by a scheduled

caesarean section in mid-October. The petition also asked the court to determine

his rights and obligations including joint custody, physical care, child support, and

tax dependency exemptions. The district court heard testimony on Benjamin’s

petition in August 2018.

3
Carrie’s first marriage was to Steve Atkinson and lasted from 2009 until 2014. They had
no children together.
4

The October 2018 decree granted the parents joint custody of J.C. and

placed physical care with Carrie. The decree allowed Benjamin visitation every

other weekend during the school year and three weeks of interaction in the

summer, as well as certain holidays. The court required Benjamin to provide all

transportation for visitations but offset his child support for that burden. And the

court ordered Benjamin to pay $688.11 in monthly child support (which included

an upward departure from the child support guidelines for child-care expenses)

and an additional $26.95 per month in back child support. The court decided Carrie

would be entitled to claim the child as a dependent on her taxes every year. The

court denied Benjamin’s request the child’s surname be changed to Jass or

hyphenated as Van Hugten-Jass. Instead, the court directed Jass be added to the

birth certificate as the child’s second middle name. Finally, the court awarded trial

attorney fees to Carrie in the amount of $12,500.

Benjamin’s appeal spans six topics: (1) his son’s surname, (2) visitation,

(3) transportation, (4) child support, (5) tax benefits, and (6) attorney fees.

II. Scope and Standards of Review

We engage in a de novo review of equitable disputes involving a child's

surname. Montgomery v. Wells, 708 N.W.2d 704, 705–06 (Iowa Ct. App. 2005).

We give weight to the district court's factual findings, especially when considering

the credibility of witnesses, but we are not bound by them. Id.

We also review de novo issues involving visitation. Callender v. Skiles, 623

N.W.2d 852, 854 (Iowa 2001). Likewise, we review child-support awards anew,

Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996), though we evaluate the district

court’s interpretation of the child support guidelines for errors at law. In re Seay,
5

746 N.W.2d 833, 834 (Iowa 2008). We also recognize the discretionary aspect of

a district court’s decision whether to impose a variance. In re Marriage of

Kupferschmidt, 705 N.W.2d 327, 334 (Iowa Ct. App. 2005) (holding “district court

did not abuse its discretion in refusing to deviate from the guidelines”).

By the same token, we review the award of attorney fees for an abuse of

discretion. In re Fiscus, 819 N.W.2d 420, 422 (Iowa Ct. App. 2012).

III. Analysis

A. Surname

In his petition, Benjamin asked the court to order the child be given the

surname Jass. On the birth certificate, Carrie recorded her son’s name as “[J.C.]

Van Hugten.” At the hearing, Benjamin said he did not object to his son’s first and

middle names but believed “my son should have my last name.” Benjamin testified

he was opposed to “any type of hyphenated name” and expressed incredulity as

to why the child “would need to be tied to her ex-husband in any way.” Benjamin

did not tell the court why it would advantage his son to have Jass as a surname.

Carrie provided more personal testimony concerning her connection to the

Van Hugten name. She first noted her twin daughter who died, M.V.H., was buried

in the Newton Union Cemetery. Carrie then explained that she “almost died” giving

birth to her next daughter, E.V.H. From there, she testified: “I was about ready to

have my C-section with [my son] [a]nd so I changed my last name to Van Hugten

in anticipation of what could become my death . . . so that I could be buried with

my daughter . . . with the last name Van Hugten.” Carrie owns a burial plot with a

single headstone bearing her deceased daughter’s name; she plans to be buried

in the same plot under the same last name.
6

As to their son’s surname, Carrie testified her preference would be

Van Hugten so he would have the same last name as his half-siblings and not feel

like “an outcast in his own home.” She continued: “It’s the Van Hugten home, and

for him to be the Jass boy, and especially if Ben is awarded every other weekend,

I don’t think that’s conducive to elementary school.” But Carrie also testified she

understood Benjamin’s position and was amenable to a dual last name: “like, Van

Hugten and then space and then Jass.”4

The district court admittedly elected “an option not proposed by either

party.” The court decided the child “should have Jass as an additional middle

name” creating the full name [J.C.] Jass Van Hugten. The court reasoned: “Many

families have used as a middle name a historic family surname that might

otherwise be lost, to help a child maintain awareness of his or her heritage.” 5

On appeal, Benjamin renews his request for the surname substitution. But

in addition, he now lobbies for the compromise position of assigning his son the

hyphenated surname Van Hugten-Jass or the unhyphenated, but dual surname

Van Hugten Jass.

In original naming disputes, we focus on the best interests of the child.6

Montgomery, 708 N.W.2d at 706–08. Our courts have abandoned the outdated

4
Carrie also testified she spoke “with the Iowa Department of Vital Statistics, they’re, like,
do not use a hyphen. It causes problems in their computer system.” But that second-
hand information was not verified by any official testimony or documents.
5
Scholarly literature backs the district court’s point. In The Means of Naming: A Social
and Cultural History, author Stephen Wilson noted middle names are a way to keep family
names going and preserve relationships. Stephen Wilson, The Means of Naming 300
(1998).
6
Name change cases are governed by Iowa Code section 674.6, which carries a different
standard. See, e.g., Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 895 (Iowa 2009);
Peckosh v. Wenger, No. 11-0119, 2011 WL 4578532, at *4 (Iowa Ct. App. Oct. 5, 2011).
Here, Carrie bestowed J.C.’s surname by unilateral action on the birth certificate.
7

notion that a child should always bear the last name of his or her father. Id.

(quoting In re Marriage of Gulsvig, 498 N.W .2d 725, 729 (Iowa 1993)). On the

flipside, a mother “should gain no advantage from her unilateral act in naming [the

child].” Id. Combining both parents’ last names into a dual surname may be an

equitable solution in some circumstances, but not in every case. Gulsvig, 498

N.W. 2d at 729; see Richard J. Lussier, Delaney v. Appeal from Probate: When is

a Dual Surname in the Best Interest of the Child?, 9 Conn. Prob. L.J. 161, 167

(1994) (“Adoption of a dual surname is not always in the best interest of the minor

child.”).

In typical appellate court style, we weigh a non-exhaustive, yet lengthy, list

of considerations in gauging a child’s best interest in a naming dispute. In

Montgomery, we compiled these factors:

(1) Convenience for the child to have the same name as or a
different name from the custodial parent.
(2) Identification of the child as part of a family unit.
(3) Assurances by the mother that she would not change her
name if she married or remarried if the child maintains the mother’s
surname.
(4) Avoiding embarrassment, inconvenience, or confusion for
the custodial parent or the child.
(5) The length of time the surname has been used.
(6) Parental misconduct, such as support or nonsupport or
maintaining or failing to maintain contact with the child.
(7) The degree of community respect associated with the
present or changed name.
(8) A positive or adverse effect a name change may have on
the bond between the child and either parent or the parents' families
(9) Any delay in requesting or objecting to name change.
(10) The preference of the child if the child is of sufficient
maturity to express a meaningful preference.
(11) Motivation of the parent seeking the change as an
attempt to alienate the child from the other parent.

Therefore, Benjamin is not asking to change J.C.’s surname but challenges the initial
determination of the name Carrie chose to record. See Montgomery, 708 N.W.2d at 706.
8

Montgomery, 708 N.W.2d at 708–09 (internal citations omitted).

The first through fourth factors favor Carrie’s position. She persuasively

articulated at trial that she believed J.C. would benefit from the sense of belonging

that accompanied being part of a sibling unit with the same last name. As the

district court found, whether or not she remarries, Carrie intended “to die with the

name of Van Hugten” so she could share a headstone with her infant daughter.

As the custodial parent, it will be more convenient and less confusing for Carrie to

have all three of her children share the Van Hugten name. As to the fifth factor,

while Carrie herself has not used the surname Van Hugten for long, we defer to

the district court’s finding: “[T]he history of her name is unusual, but this court finds

her explanation to be entirely credible.”

On factors six and seven, no parental misconduct is at issue, but Benjamin

presented no evidence on “the degree of community respect” associated with the

Jass name. While bemoaning the lack of “direct evidence on this point,” the district

court ventured: “There is no reason in this record to doubt that the Jass family is

respected in the Alden-Iowa Falls area. There is no reason in the record to think

the Jass name is known at all in Newton.” On appeal, Benjamin addresses the

eighth factor by asserting J.C. would have a “stronger connection” with him and

the extended Jass family if he shared their name. But Benjamin again presented

no testimony in support of that claim at trial.

On the final pertinent factor,7 neither Carrie nor Benjamin appear motivated

to alienate the child from the other parent. But Carrie voiced a more flexible

7
Factors nine and ten have no bearing in this case.
9

position at trial on the naming issue. The record also shows Carrie has been

supportive of Benjamin’s relationship with J.C. That showing differentiates this

case from Rapp v. Abraham, No. 06-0451, 2007 WL 1687772, at *2 (Iowa Ct. App.

June 13, 2007), upon which Benjamin relies. Here, it is not necessary for J.C. to

have the Jass surname to ensure a connection to his father’s family.

We also find this case distinct from In re Uker, No. 10-1829, 2011 WL

2420702, at *2 (Iowa Ct. App. June 14, 2011), where the noncustodial father

sought to hyphenate his daughter’s name on the birth certificate and presented

evidence concerning why the combined name was in the child’s best interests.

Here, Benjamin objected to hyphenation at trial, yet urges a hyphenated last name

as an alternative on appeal. Because the district did not have the benefit of

Benjamin’s current position, we do not consider it on appeal. See State v.

Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the law of

appeal and error than the axiom that a party cannot sing a song to us [on appeal]

that was not first sung in the trial court.”).

Without any analysis or authority, Benjamin asserts the addition of a second

middle name “does little to help [J.C.] identify with the Jass family,” whereas

establishing Jass as a second surname would be in the child’s best interests.

Benjamin does not flesh out this dichotomy, and we are not persuaded by his bare

assertion. Our own research reveals courts have long debated the legal import of

middle names.

It was an ancient rule that the law would recognize but two names of
an individual, the surname and one given name, and that anything
more would be disregarded as of no significance. Generally the first
name was the one recognized, and a middle name or its initial was
treated as a negligible incident.
10

Loser v. Plainfield Sav. Bank, 128 N.W. 1101, 1104 (Iowa 1910). But even in

1910, the supreme court observed that middle names could be an important part

of a person’s identity:

[T[he average person is no longer started in life with a single given
name, but usually with two or more. In familiar address he is
ordinarily called by one only, and if he writes either of his Christian
names[8] in full, it is the one by which he is best known. This familiar
name may be, and perhaps more often is, the first, but it is not so
universally the case that the habitual and common use of the second
name may be ignored. He who is christened “James Monroe” or
“John Wesley” or “Benjamin Franklin” may be known to his friends,
acquaintances, and the community in which he lives simply as
“Monroe” or “Wesley” or “Franklin[.]”

Id. at 1104.

Like the district court, we find incorporating Jass as a second middle name

was in J.C.’s best interests because the addition adequately fostered an ongoing

awareness of his ties to Benjamin’s family. Courts from other jurisdictions have

reached similar conclusions when deciding what name is in a child’s best interests.

See, e.g., In re Marriage of McManamy & Templeton, 18 Cal. Rptr. 2d 216, 218

(Ct. App. 1993) (declining father’s proposed name change when daughter already

had his surname as middle name and he simply voiced his unhappiness with the

mother’s choice of surname for the child); In re Tate Oliver B., 52 N.E.3d 351, 362

(Ill. App. Ct. 2016) (“Given that the evidence did not support a finding that a name

change was necessary to serve Tate’s best interest, the trial court potentially could

have advanced the goal of including both parents’ surnames by adding Evan’s

8
“In medieval England, the Christian name was the baptismal name and was the only
name most people bore. Surnames were given to differentiate (e.g., Robert the Younger).”
Bryan A. Garner, Modern American Usage 790 (3d ed. 2009).
11

surname as an additional middle name.”); Swadner v. Swadner, 897 N.E.2d 966,

972 n.3 (Ind. Ct. App. 2008) (“Although not customary, it is not uncommon for

individuals to bear two middle names.”); M.D. v. A.S.L., 646 A.2d 543, 546 (N.J.

Super. Ch. Div. 1994) (“The child’s middle name shall be changed to include the

father’s surname if that is [the father’s] desire. Anything that can reinforce the

bonds between the child and her individual parents is to be encouraged, provided

that the focus is through the eyes and needs of the child.”). We decline to modify

the decree on the naming issue.

B. Visitation

We turn next to Benjamin’s challenge to the visitation schedule. Decrees

should award a noncustodial parent with liberal visitation so a child will have the

chance for maximum continuing physical and emotional contact with both parents.

In re Marriage of Farrell, 481 N.W.2d 528, 531 (Iowa Ct. App. 1991). Like physical

care, the visitation arrangement must serve the child’s best interests. Id.

The decree allowed Benjamin to have care of J.C. every other weekend

from 5:00 p.m. on Friday through 5:00 p.m. on Sunday, “continuing the established

pattern of alternation.” The decree also allowed Benjamin “extended summer

visitation of one week (that is seven days including any adjacent or included

visitation weekend) in each of the months of June, July, and August.” And the

decree allotted holiday time between the parents.

On appeal, Benjamin complains he received “limited visitation” in the

decree. Carrie hops on that word choice, insisting the schedule is “common for

non-custodial parents, particularly those who live some distance from the child.”

(Her home in Newton was about seventy-five miles from Benjamin’s acreage
12

outside of Alden.) Benjamin contends he should have more time with J.C. in June,

July, and August because he does not teach classes during the summer. He

proposes J.C. live with him in the summer and Carrie receive the alternating

weekend visitation Benjamin was assigned during the school year. Benjamin also

proposes receiving more visitation time during the school year, either nine or

fourteen overnights per month.

In response, Carrie points out Benjamin did not propose a specific visitation

schedule at trial, but rather talked generally about maximizing contact. She argues

it is not in J.C.’s best interests to be in his father’s care for the entire summer. She

expresses concern Benjamin’s other time commitments (for example, coaching

and farming with his father) would prevent him from directly supervising J.C. and

the child would often be cared for by extended family members. Carrie argues the

current visitation schedule “works well with the routines of both households.”

After our independent review, we find no reason to change the visitation

order. The current schedule—alternating weekends during the school year and an

extra week of visitation in each month of the summer—provides J.C. significant

ongoing contact with his father. Allowing Benjamin visitation for the entire summer

would not be in the child’s best interests. It would deprive J.C. of maximum contact

with the parent awarded physical care and would limit his ability to participate in

activities in his home community as he approaches school age. We affirm the

visitation provisions of the decree.

C. Transportation

On a related note, Benjamin argues the district court failed to achieve equity

by requiring him to provide all transportation to effectuate visitation. At the time of
13

trial, Benjamin had been transporting J.C. at both the beginning and end of every

visitation and asked that the burden be shared equally. Carrie resisted, testifying

to the difficulty of traveling with “a disabled three-year-old, a two-year-old and an

infant, three car seats, it’s a lot of logistics.”

The district court carefully analyzed the situation:

[I]f she is required to provide transportation, she would be
required to transport three children one way and two the other. The
oldest will be four in January of 2019 and has significant health
issues. Requiring her to provide transportation on the current
schedule would require her to be on the road at the children’s
evening meal time.
The court will not order Ms. Van Hugten to provide part of the
transportation. Splitting the trips, each party going halfway, means
that the party who arrives first will be required to wait in a place away
from both homes with one or more children in a motor vehicle. That
is not in this child’s best interest. Neither is it in his best interest to
have him on the road at mealtime, to interrupt Mr. Jass’s time with
the child, or to have the child arrive so late that his bedtime is
disrupted; at least one of those events would occur if Ms. Van Hugten
is required to provide a round trip. Having Mr. Jass provide all the
transportation is not entirely satisfactory, but it is the least
unsatisfactory alternative the court has. When the child grows older,
time in the car with his father can become meaningful.

But the court also recognized bearing the entire cost of transportation was

a substantial injustice to Benjamin. To offset that cost, the court adjusted

Benjamin’s child support obligation by $185.50 per month. We agree this cost-

sharing was an equitable solution to the transportation dilemma. See In re

Marriage of Bonnette, 492 N.W.2d 717, 722 (Iowa Ct. App.1992).

D. Child Support Variance

On the issue of child support, Benjamin argues the district court should not

have deviated upward from the guidelines to allow a variance for Carrie’s child

care expenses. Iowa Court Rule 9.11A permits the court to vary the amount of
14

child support that would result from the application of the guidelines based on the

custodial parent’s child-care expenses. “In determining whether variance is

warranted under this rule and rule 9.11, the court should consider the fact that child

care expenses are not specifically included in the economic data used to establish

the support amounts in the Schedule of Basic Support Obligations.” Iowa Ct.

R. 9.11A.

Under Rule 9.11, the court is not to vary from the amount of child support

that would result from application of the guidelines without a written finding that the

guidelines would be unjust or inappropriate. Two criteria inform that determination:

(1) “substantial injustice would result to the payor, payee, or child[],” and

(2) “adjustments are necessary to provide for the needs of the child[] or to do

justice between the parties, payor, or payee under the special circumstances of

the case.” Iowa Ct. R. 9.11.

Here, Carrie showed she paid $205 per week9 (the cost for infants and

toddlers) to the Newton YMCA Early Learning Center for J.C.’s care. Because

Benjamin’s earnings represented about thirty-six percent of the parties’ income,

the court calculated his monthly share of the child care expenses to be $306.50.

The court added that amount to Benjamin’s obligation of $547.11, and then

subtracted the transportation costs of $185.50, for a total monthly payment of

$668.11.

Benjamin complains the court did not make specific findings in support of

the variance or justify why the special circumstances of this case required the

9
The court extrapolated a cost of $10,660 per year and $888 per month.
15

upward deviation from the guidelines. Carrie contends, “Rule 9.11A does not

require the trial court to make specific findings that a variance is necessary to

prevent substantial injustice or necessary to provide for the needs of the child or

to do justice between the parties.” We disagree with Carrie’s interpretation of the

rule. Rule 9.11A expressly cross references Rule 9.11, which requires written

findings to support a variance from the guidelines. When several acts relate to the

same subject, we read the challenged language “in pari materia” or in a like

manner. State v. Hensley, 911 N.W.2d 678, 682 (Iowa 2018) (quoting State v.

Coleman, 907 N.W.2d 124, 137 (Iowa 2018)). Interpreting rule 9.11A by reference

to 9.11, we believe written findings were required.

But in cases where the district court has not made required findings under

rule 9.11, we have done so as part of our de novo review. See, e.g., In re Marriage

of El Krim, No. 16-1620, 2017 WL 2465806, at *5–6 (Iowa Ct. App. June 7, 2017);

In re Marriage of Lindemier, No. 14-1321, 2015 WL 2089702, at *6 (Iowa Ct. App.

May 6, 2015); In re Vaske, No. 08-1922, 2009 WL 3064425, at *2 (Iowa Ct. App.

Sept. 17, 2009).

At trial, Carrie touted the high quality of care J.C. would receive at the

weekly cost of $205, and Benjamin testified he did not object to J.C.’s attendance

at the YMCA center. The only alternative Benjamin suggests is his mother’s ability

to provide childcare, but this is not consistent with the care arrangement, as she

lives in Alden. The district court agreed J.C. “would benefit socially at the Newton

YMCA in ways that no in-home caretaker could provide.” Carrie also testified she

paid $185 per week for her three-year-old daughter to attend the same child-care

center. On top of that expense, Carrie’s four-year-old daughter requires more
16

specialized care. If Carrie was ordered to find a cheaper child care provider, she

would have to pick up and drop off at three different locations each day, a time-

consuming and logistical hardship. By contrast, Benjamin did not have the burden

of other child-care expenses because his sons were already school aged. Given

these special circumstances, we conclude the adjustment in child support was

necessary to achieve substantial justice for Carrie and J.C. We find it equitable

for Benjamin to share in the costs of J.C.’s child care in accord with his income

percentage. Therefore, we affirm the child-care expense variance ordered by the

district court.

But, as Benjamin argues, that variance should have an end date.10 We

modify the decree to add a sunset provision for the upward deviation from the

support guidelines. Carrie testified after her mandatory retirement date in the

spring of 2020, she plans to stay home with her children until they reach school

age. Thus, when Carrie stops paying full-time tuition for J.C. to attend daycare,

she should notify Benjamin and, in the following month, his child support obligation

should return to the amount specified in the guidelines.

E. Tax Benefits

Benjamin next contends the district court misallocated the tax benefits

relating to J.C. At trial, counsel for the parties agreed recent federal tax legislation

(Pub. L. No. 115-97, 131 Stat. 2054 (2017), dubbed the Tax Cuts and Jobs Act

(TCJA) by its sponsors) suspended both personal exemptions and those for

10
Carrie argues Benjamin did not preserve this request for appeal because he did not ask
for an end date in the district court. We conclude our de novo review permits us to reach
the end-date issue. Carrie also argues there is not enough evidence in the record to
support a specific end date. We disagree.
17

dependents starting in 2018, but increased the child tax credit.11 According to the

Internal Revenue Service, under the TCJA, a child may be treated as a “qualifying

child” of a noncustodial parent if the parents were divorced or living apart for at

least six months, the child received half of his support from the parents, the child

is in the custody of one or both parents for at least half the year, and the custodial

parent signs a waiver form. See IRS Publication 4449 (Rev. 2-2011) (Cat. No.

39718N Department of the Treasury); see also IRS Form 8332 (rev. October

2018). But Carrie’s counsel noted under the TCJA, Benjamin could not claim the

child-care credit because “the child doesn’t reside with him and he’s not paying for

child care.”12

The decree included this discussion:

The court will assign all tax benefits relating to the child to Ms. Van
Hugten as the primary physical care parent. This is the basis on
which the court has calculated support. After the tax legislation of
2017, the status of the tax benefits is somewhat uncertain until the
regulations are promulgated. Counsel agreed at trial that some
benefits are available only to the parent with physical care. Mr.
Jass’s obligation is lower because he has not been assigned the
benefits, and the court does not want to allow any benefits to be
unused.

11
“Though the TCJA eliminated dependency exemptions for tax years 2018 through 2025,
the [26 U.S.C.] Sec. 152 definitions of dependents remain relevant for determining
eligibility for the child tax credit. Sec. 24(h)(2) doubles the credit amount from $1,000 to
$2,000 per ‘qualifying child.’” Katherine Hetherington, Child Tax Credit Now Higher, More
Widely Available, J. Acct. (June 1, 2018), https://www.journalofaccountancy.com/issues/
2018/jun/child-tax-credit.html (explaining up to $1,400 of the credit can be refundable if
the taxpayer is unable to use the credit to offset his or her tax liability).
12
While counsel did not cite any authority for this proposition, it appears to be accurate
under the Internal Revenue Publication for Child and Dependent Care Expenses (for use
in preparing 2018 returns) which states: “The noncustodial parent can’t treat the child as
a qualifying person [for purposes of child-care expenses] even if that parent is entitled to
claim the child as a dependent under the special rules for a child of divorced or separated
parents.” Internal Revenue Serv., U.S. Dep’t of the Treasury, Pub. No. 503, Child and
Dependent Care Expenses 4 (Jan. 15, 2019).
18

On appeal, Benjamin claims equity requires he and Carrie alternate the tax

benefits related to J.C. Citing her prior tax filings, Benjamin argues, “Carrie does

not need the tax dependency for [J.C.] to avoid taxes, but instead it would simply

give her more credits and a larger refund.” Carrie defends the decree and points

to the district court’s assertion “counsel for the parties agreed that some of the

benefits of claiming the child are only available to the custodial parent.” She also

argues reliance on her past returns is misplaced because her substantial losses

from a closed business will not recur, she will have taxable income moving forward,

and she will benefit from claiming the child tax credit for J.C. She contends

Benjamin has not offered “evidence of how he would benefit more than Carrie or

why the benefits that are only available to Carrie as the custodial parent should be

wasted.”

The general rule has been “that the parent given physical care of the child

is entitled to claim the child as a tax exemption.” In re Marriage of Okland, 699

N.W.2d 260, 262 (Iowa 2005) (citing In re Marriage of Kerber, 433 N.W.2d 53, 54

(Iowa Ct. App. 1998)). But “Iowa district courts have the authority to award

dependent child tax credits to the noncustodial parent to achieve an equitable

resolution in a dissolution.” In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa

1996). Courts should consider whether allocating the credits to the noncustodial

parent would “free up more money for the dependent’s care,” or whether it would

be inequitable to allocate the exemption to the custodial parent because they

would benefit the least from receiving it. Okland, 699 N.W.2d at 260, 269. Here,

Benjamin has not shown an award to him would “free up more money” for J.C.’s
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care. On the instant record, we find no inequity in the court’s award of the child

tax benefits to Carrie.

F. Attorney Fees

In his final assignment of error, Benjamin argues the district court abused

its discretion in awarding Carrie trial attorney fees. The court may award the

prevailing party reasonable attorney fees in a proceeding to determine custody or

visitation. Iowa Code § 600B.26. Benjamin insists the court overlooked the

significant disparity between their incomes and failed to analyze who was the

“prevailing party.” We disagree on both counts. The district court “clearly had the

parties’ abilities to pay in mind” when it ordered Benjamin to pay $12,500 of

Carrie’s $13,763 in trial attorney fees. See Markey v. Carney, 705 N.W.2d 13, 26

(Iowa 2005). The court expressly noted Carrie’s “greater annual income” but

recognized her “significant financial burden arising from the special needs of her

older child.” The court also considered the greater “liquid assets” available to

Benjamin. And Carrie prevailed on the contested issues of physical care and

visitation. We find no abuse of discretion in the award of trial attorney fees.

Section 600B.26 also allows the award of appellate attorney fees. Schaffer

v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 23 (Iowa 2001) (holding statute

allowing award of trial attorney fees permits award of appellate attorney fees as

well). We exercise our own discretion in deciding whether to award reasonable

fees to the party prevailing on appeal. Markey, 705 N.W.2d at 26. Although Carrie

prevailed on nearly all issues raised by Benjamin on appeal, we decline to award

her appellate attorney fees. The district court ordered Benjamin to pay a significant

amount of her trial attorney fees, and we do not believe he is in a financial position
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to pay more toward her appellate representation. But the costs of the appeal are

assessed to Benjamin.

AFFIRMED AS MODIFIED.