                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-2135
                             Filed November 25, 2015

KEVIN RYAN JOHNSTON,
     Petitioner-Appellee,

vs.

KATELYN ELIZABETH PEREZ
VAN DAM, f/k/a KATELYN
ELIZABETH EVANS,
     Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Dustria Relph, Judge.



       Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of

her petition for modification of a decree of dissolution, and the calculation of child

support. AFFIRMED.




       Christina I. Thompson of Phil Watson, P.C., Des Moines, for appellant.

       Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellee.



       Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of

her petition for modification of a decree of dissolution, and the calculation of child

support. She requests appellate attorney fees. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS

       Katelyn Perez Van Dam and Kevin Johnston have one child, A.R.J, who

was born in 2009. The parties were never married. In September 2011, the

parties agreed to, and the court approved, joint legal custody and physical care

of the child.

       Katelyn filed a petition for modification on July 1, 2014, claiming a

substantial change in circumstances.           She requested the court modify the

custody decree and grant her physical care of the child, with reasonable visitation

to Kevin. On August 11, Katelyn requested a hearing on temporary matters as

the parties were disputing where the child should attend kindergarten. Kevin

responded by filing an application to show cause requesting Katelyn be found in

contempt for enrolling the child in a school district not listed in the decree.

       On August 26 a hearing was held on the two motions.                  The court

dismissed the application for rule to show cause at Kevin’s cost.           The court

declined to rule on Katelyn’s petition for modification and directed the parties to

obtain a trial date, which was later set for November 10. Kevin then filed a

motion to enforce the custody decree. On October 2, a hearing was held on the

motion. The district court denied the motion finding the issue presented was

previously ruled upon.
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       Before the trial on Katelyn’s petition, both parties filed multiple motions.

Katelyn filed a combined motion in limine, objection to petitioner’s witnesses and

exhibits, and motion for sanctions.     Katelyn requested sanctions for Kevin’s

failure to produce responses to her discovery requests, his failure to timely

provide a witness and exhibit list, and copies of his proposed exhibits.       On

November 9, Kevin filed a motion to dismiss Katelyn’s petition for modification

and enter a declaratory order stating that the child should attend one of the

school districts listed in the decree. He also filed a motion in limine to exclude

“any and all evidence not previously presented to a parenting coordinator,” citing

a paragraph of the decree allowing the appointment of a parenting coordinator to

settle the parties’ disputes.

       A trial on all issues was held on November 10. The court found Katelyn

failed to show a substantial change in circumstances to modify the decree. With

the parties’ agreement, and in the child’s best interests, the court modified the

parenting schedule. The court found the West Des Moines school district to be

the most suitable for the child, set Kevin’s child support at $113.06 per month,

and reaffirmed the other provisions of the original decree. Concerning the pre-

trial motions, the court denied Katelyn’s motion in limine, but granted her motion

for sanctions. The court found:

       it appropriate to sanction [Kevin] for his well-documented failure to
       respond to [Katelyn’s] discovery requests and abide by trial
       scheduling orders. [Kevin’s] delays have caused [Katelyn] to incur
       significant additional attorney fees. Accordingly, and pursuant to
       Iowa Rule of Civil Procedure 1.602(5), [Kevin] is sanctioned in the
       amount of $ 1,000.00, which shall be payable to [Katelyn’s] attorney
       within 90 days of entry of this order.
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The court denied Kevin’s motion to dismiss and motion in limine.

         Katelyn appeals.

II.      STANDARD OF REVIEW

         We review a district court’s decision on whether to impose sanctions for

an abuse of discretion. Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa

2009). “We find such an abuse when the district court exercises its discretion on

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Schettler v.     Iowa Dist.    Ct.,   509   N.W.2d   459,   464–65   (Iowa   1993).

“‘Unreasonable’ in this context means not based on substantial evidence.” Id.

         This modification action was tried in equity, and our review is de novo.

Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006).

However, we give weight to the trial court’s findings because it was present to

listen to and observe the parties and witnesses. In re Marriage of Zebecki, 389

N.W.2d 396, 398 (Iowa 1986); see also Iowa R. App. P. 6.904(3)(g).

III.     DISCUSSION

         A.    Motion for Sanctions

         Katelyn claims the court’s sanction of $1000 was insufficient and an abuse

of discretion. She also claims the court acted improperly by allowing Kevin to

offer exhibits and witnesses when he failed to comply with the trial scheduling

order.

         To ensure our district courts have the tools to effectively manage pretrial

and trial conduct, we have recognized the inherent power of the district court to

impose sanctions. Fry v. Blauvelt, 818 N.W.2d 123, 130 (Iowa 2012); see also
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Iowa R. Civ. P. 1.602(5) (stating if a party fails to obey a scheduling or pretrial

order, the court “may make such orders with regard thereto as are just”).

Although district courts have discretion in deciding whether to enforce pretrial

orders, “it is incumbent upon a reviewing court to scrutinize the exercise of that

discretion and to confine the exercise to reasonable limits.” Fox v. Stanley J.

How & Assocs., Inc., 309 N.W.2d 520, 522 (Iowa Ct. App. 1981).

       Katelyn claims the district court’s decision to sanction Kevin $1000

violated the language of Iowa Rule of Civil Procedure 1.602(5), which states a

court “shall require the party or the attorney representing that party or both to pay

the reasonable expenses incurred because of any noncompliance with this rule,

including attorney’s fees, unless the court finds that the noncompliance was

substantially justified or that other circumstances make an award of expenses

unjust.” Katelyn notes, due to Kevin’s eleventh hour production of documents,

her attorney had to enlist the help of an additional attorney at a total cost of

$1912.00.    Additionally, she complains her attorney incurred $4625 in costs

preparing the weekend before trial.

       A trial scheduling order was entered on September 25, 2014, which set

trial for November 10.      The order required the parties to designate expert

witnesses and complete discovery thirty days prior to trial, file and exchange

witness and exhibit lists ten days prior to trial, and file and exchange current

financial statements and stipulation of assets and liabilities ten days prior to trial.

The document included a warning that a violation of the order may result in

sanctions, including dismissal or a grant of relief at the request by the opposing
                                          6



party.    Kevin filed his witness and exhibit list on November 5; he filed an

amended version on November 7 (Friday afternoon before trial). The morning of

November 7, Katelyn filed her combined motion in limine, objection to Kevin’s

witnesses and exhibits, and motion for sanctions. Katelyn requested the court

impose sanctions by disallowing many of Kevin’s exhibits and witnesses.

Katelyn did not request a continuance because “a continuance would essentially

reward the Petitioner for his actions,” and prolong their child’s chaotic education

schedule.

         We find the district court’s decision to sanction Kevin (and only Kevin) for

$1000 was reasonable and tenable. The district court reasoned: “The court finds

it appropriate to sanction [Kevin] for his well-documented failure to respond to

[Katelyn’s] discovery requests and abide by trial scheduling orders. [Kevin’s]

delays have caused [Katelyn] to incur significant additional attorney fees.” Given

the considerable amount of discretion granted to the district court to sanction a

party, and the considerable discretion we give the district court on appeal, we

affirm the sanction.

         We find the district court did not abuse its discretion by allowing Kevin to

offer his witnesses and exhibits.           The purpose behind the disclosure

requirements of the witness and exhibit lists is to assist the parties and the court

in having an orderly trial free of surprises that can cause delay or even

derailment. See Fry, 818 N.W.2d at 129–30. Pre-trial conferences and orders

“contemplate trial, and are designed, not to prevent the presentation of a

controversy to the court, but to expedite and simplify that presentation.” Iowa R.
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Civ. P. 1.602(5) cmt. For this reason, “[e]xclusion of evidence is the most severe

sanction available under the rule, and is justified only when prejudice would

result. Exclusion should not be imposed lightly; other sanctions are available

such as continuation of the trial or limitation of testimony.” Klein v. Chicago Cent.

& Pacific R. Co., 596 N.W.2d 58, 61 (Iowa 1999).             The most appropriate

sanction, in this instance, would have been to continue the trial. As this was not

requested, the “severe sanction” of excluding evidence was not warranted. The

court allowed both parties to make statements concerning the untimely filings in

the case. The court found there was nothing offered by Kevin “that should be a

surprise to” Katelyn. We defer to the district court’s finding and decline Katelyn’s

request to disregard the exhibits offered by Kevin.

       B.     Modification

       Katelyn claims she demonstrated a “substantial change in circumstances”

not within the contemplation of the district court when it entered the decree, and

she is the parent best suited to care for the child.

       The objective of physical care “is to place the children in the environment

most likely to bring them to health, both physically and mentally, and to social

maturity.”   In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).

Changing physical care of children is one of the most significant modifications

that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa

Ct. App. 2000). The parent seeking to modify the physical care provision of a

dissolution decree must prove “there has been a substantial change in

circumstances since the time of the decree not contemplated by the court when
                                         8



the decree was entered, which is more or less permanent and relates to the

welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). In addition, the parent seeking to modify physical care has a “heavy

burden” and “must show the ability to offer superior care.” Id.; see also In re

Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once

custody of the children has been fixed, it should be disturbed only for the most

cogent reasons”). The controlling consideration is the child’s best interest. In re

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).

      Katelyn contends the evidence supporting her modification claim includes:

the fact she has served as the “de facto” primary care giver to the child, the

parties’ inability to communicate, and the negative effect the frequent transitions

between the parents has on the child.

      Upon our de novo review of the record, we conclude Katelyn failed to

prove a substantial change in circumstances. While it is clear that some changes

have occurred, those changes were contemplated at the time the decree was

entered, or are insufficient to merit modifying the decree. The district court’s

order provides a good analysis of the situation:

      A.J. has been attending two different kindergartens since school
      began this year, Madrid on Katelyn’s days and Western Hills on
      Kevin’s days. Kevin, Katelyn, and their current spouses all agreed
      that attending two different schools has been detrimental to A.J.
      Although she is apparently doing well academically at both schools
      so far, they testified that the frequent changes are causing A.J.
      confusion, anxiety, and frequent need for reassurance and
      explanation about her schedule. While the fact that A.J. began
      kindergarten could be considered a “change in the educational
      needs of the minor child,” it was obviously anticipated that she
      would begin school at some point when the decree was entered.
      The court agrees that one school needs to be determined for A.J.,
                                          9



       but does not find that fact that she has reached the age to start
       school enough to warrant a change in custody.
              Katelyn’s claim that Kevin has had a change in his mental or
       emotional health to the point that it would warrant a change in
       custody simply is not supported by the evidence. She portrayed
       him as controlling, but text messages admitted into evidence show
       that they were able to communicate civilly and work out most
       issues concerning A.J. Katelyn claimed she felt bullied by Kevin,
       but she never sought the assistance of a parenting coordinator to
       help her resolve any issues. She presented evidence consisting of
       Facebook photos to support her claim that Kevin has a drinking
       problem. Kevin testified that the events depicted in the photos
       were his bachelor party, a New Year’s Eve party, a wedding party,
       and his birthday party. He has never been arrested for any drug or
       alcohol related issues, nor was evidence presented that it has been
       suggested that he undergo substance abuse or mental health
       treatment. There was no meaningful evidence presented to
       indicate that Kevin has any concerning mental, emotional, or
       substance related issues.
              Kevin and Katelyn are both very involved parents. They
       both take her to doctor’s appointments and dental appointments.
       They both participate in her school activities. Both families are
       involved in church and other extracurricular activities with A.J.
       They both arrange their own child care for A.J. (the court notes that
       the original decree provides that each parent may select their own
       daycare provider). A.J. is very fortunate to have two loving and
       involved parents and extended families who are obviously
       concerned about her long-term well-being.
              The court is unable to find that Katelyn is more able to
       minister to A.J.’s well-being than Kevin is. If anything, the court has
       some concern for Katelyn’s apparent lack of insight into A.J.’s need
       for stability in her early years. Besides frequent residential moves,
       Katelyn has changed A.J.’s childcare providers at least nine
       different times with six different providers in the last three years.
       When asked if the frequent changes were negatively impacting her
       daughter, Katelyn didn’t think so, since A.J. is with different people
       every day. She testified that she thinks A.J. has stability because
       she has a roof over her head. And while she said she believes
       daycare providers are important people in a child’s development,
       she also believes that frequent changes are “not a big deal” for a
       child.

We affirm the district court’s denial of Katelyn’s modification petition.
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       C.     Child Support

       Katelyn claims the district court failed to consider Kevin’s overtime hours

in determining his child support obligation.     The district court noted: “Kevin’s

annual salary is $41,787.20. Any income over that is due to overtime. Kevin’s

pay stubs . . . show that Kevin does not regularly and routinely work overtime.”

       Overtime wages are not excluded as income. In re Marriage of Brown,

487 N.W.2d 331, 333 (Iowa 1992). Overtime wages are within the definition of

gross income to be used in calculating net monthly income for child support

purposes. Id. This conclusion does not necessarily mean, however, that a court

must steadfastly adhere to the appropriate child support amount as determined

by the guidelines using overtime pay if the amount results in injustice between

the parties. Id. In circumstances where overtime pay appears to be an anomaly

or is uncertain or speculative, a deviation from the child support guidelines may

be appropriate. Id.; see also In re Marriage of Close, 478 N.W.2d 852, 854 (Iowa

Ct. App. 1991).     Yet a parent’s child support obligation should not be so

burdensome that the parent is required to work overtime to satisfy it.         In re

Marriage of Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005).

However, the district court must make a specific finding to that effect. Id.

       Upon our de novo review of the record, we agree with the district court

Kevin’s overtime wages are “uncertain or speculative,” and it would it would be

unjust to include the overtime wages in the calculation of Kevin’s child support

obligation. We affirm.
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        D.    Appellate Attorney Fees

        Katelyn requests an award of appellate attorney fees.         An award of

appellate attorney fees is not a matter of right but rests within our discretion. In

re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994).               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. Id. Given the circumstances in this action, we decline to award

Katelyn appellate attorney fees.

IV.     CONCLUSION

        We find the district court did not abuse its discretion by sanctioning Kevin

$1000. Further, Katelyn has failed to carry her heavy burden in demonstrating a

substantial change in circumstances to merit modifying the original decree. The

district court properly excluded Kevin’s overtime wages in calculating his child

support obligation. Finally, we decline Katelyn’s request for appellate attorney

fees.

        AFFIRMED.
