                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0621
                                Filed May 1, 2019


KAREN K. PISTEK,
    Plaintiff-Appellant,

vs.

DALTON S. KARSJENS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Monroe County, Lucy J. Gamon,

Judge.



      Karen Pistek appeals the district court order establishing paternity, custody,

visitation, and support of the child she shares with Dalton Karsjens. AFFIRMED

AS MODIFIED.



      Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

      Jenna K. Lain of The Law Office of Jenna K. Lain, PLLC, Corydon, for

appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, Judge.

       Karen Pistek and Dalton Karsjens are the parents of O.K.K., who was born

in 2016. In December 2016, Karen filed a petition to establish paternity, custody,

visitation, and support of O.K.K. Following trial, the district court entered an order

establishing Dalton’s paternity and granting him physical care of O.K.K.          On

appeal, Karen contends the court abused its discretion in denying her request for

an additional day of testimony. She asks us to grant her physical care of the child

or, in the alternative, to grant her additional visitation. Finally, she contends the

court erred in calculating child support and reserving jurisdiction on the issue of a

post-secondary-education subsidy. We consider each argument in turn.

       I. Additional Testimony.

       We first consider Karen’s challenge to the district court’s denial of her

request to add a third day of testimony. Karen’s attorney first made the request on

the afternoon of the second day of trial, but another case was set to begin trial the

following day. Her attorney then asked if the court would consider scheduling a

third day of testimony at a later date, and the court ventured that a date would not

be available for “four or five months.” After Dalton’s attorney objected to having a

lengthy gap between testimony, the court denied the request.           After the trial

concluded, Karen filed a motion to reconsider her request asserting she “had

approximately 16 witnesses that were not able to testify on her behalf due to time

constraints.”   The court denied the motion.        We review the district court’s

determination to place time limitations on the hearing for an abuse of discretion.

See In re Marriage of Ihle, 577 N.W.2d 64, 67 (Iowa Ct. App. 1998) (“It is generally

recognized that matters relating to the course and conduct of a trial, not regulated
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by statute or rule, are within the discretion of the trial judge.”); In re Marriage of

Rebouche, 587 N.W.2d 795, 798 (Iowa Ct. App. 1998) (“[W]e afford trial judges

wide discretion over the course and conduct of a trial, including such issues as the

number of witnesses on a certain point.”). This discretion is necessary to allow the

trial court “to prevent an undue waste of time, avoid needless presentation of

cumulative evidence, and to responsibly manage the stream of cases through the

spectrum of justice.” Ihle, 577 N.W.2d at 67. We will find an abuse of discretion

only if the district court exercises its discretion “on grounds or for reasons that are

clearly untenable or to an extent clearly unreasonable.”           In re Marriage of

Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012).

       In its written ruling denying Karen’s motion to reconsider, the district court

noted that the parties indicated the trial should be set for two days when they filed

the trial scheduling and discovery plan in August 2017. In September 2017, the

district court set the matter for a two-day trial. Noting that the case involved the

custody of one minor child, the court observed: “Such cases are very rarely set for

more than two days in this district. Such cases are sometimes set for three days

upon the advance request of the parties. No such request was made in this case.”

Rather, Karen did not request an additional day of testimony until the afternoon of

the second day of trial. The court noted its schedule did not allow for a third day

of trial and that it was likely a third day could not not be scheduled for several

months, given the court scheduling in the district. It also noted that it did its best

to equitably divide the time available to the parties, who received the same amount

of time to present evidence at trial. Concluding that “[i]t would not be in the best

interest of the minor child to continue the case to a later date for additional
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evidence or testimony,” the court denied the motion.          We find no abuse of

discretion.

       II. Physical Care.

       We review custody determinations de novo.           See Mason v. Hall, 419

N.W.2d 367, 369 (Iowa 1988). Because the district court had the opportunity to

listen to and observe the parties and witnesses, we give weight to its fact findings,

especially when considering witness credibility. See McKee v. Dicus, 785 N.W.2d

733, 736 (Iowa Ct. App. 2010). However, we are not bound by them. See id.

       Our first and governing consideration is the best interests of the child. See

Iowa R. App. P. 6.904(3)(o). Our goal is to place the child in the care of the parent

who is best able to minister to the child’s long-term best interests. See In re

Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974).                 In making this

determination, we consider the list of factors set forth in Iowa Code section 598.41

(2017), along with other relevant factors. See Iowa Code § 600B.40(2) (directing

the court to apply the provisions of section 598.41 in determining custody in

paternity actions); In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

       The court, insofar as is reasonable and in the best interest of the
       child, shall order the custody award . . . which will assure the child
       the opportunity for the maximum continuing physical and emotional
       contact with both parents . . . , and which will encourage parents to
       share the rights and responsibilities of raising the child unless direct
       physical harm or significant emotional harm to the child is likely to
       result from such contact with one parent.

Iowa Code § 598.41(1)(a). Our objective is to place the child in the environment

most likely to foster physical and mental health, as well as social maturity. See

Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995).
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       In determining which parent is better able to minister to O.K.K.’s long-term

best interests, the district court weighed each of the twelve factors set forth in

Winters in its detailed ruling. The court found: “Both Karen and Dalton have shown

that they can be competent caretakers for OKK. Both have suitable homes for

OKK to live in. Both are well bonded to OKK and love her very much.” However,

it found that Karen “has a history of instability and impulsivity,” while Dalton “has

shown himself to be a very hardworking and stable person, given his young age.”

More importantly, the court found that Karen has a history of discouraging Dalton’s

attempts to parent while Dalton “[does] not impose[] any similar roadblocks to

Karen’s role as a mother.” Coupled with the fact that O.K.K. was well bonded with

Dalton’s younger child, who also lives in the home, the court found O.K.K.’s best

interests would be served by granting Dalton physical care.

       Affording the district court’s findings the deference they are due, we agree

with its determination that Dalton has shown he is better able to minister to O.K.K.’s

long-term best interests. Accordingly, we affirm the physical-care provision.

       III. Visitation.

       The district court ordered that until O.K.K. begins preschool or school,

visitation with Karen would occur on alternating weekends “from Friday at 6:00

p.m. until Monday at 6:30 p.m.” Once O.K.K. is enrolled in preschool or school,

the visitations “shall end on Sundays at 6:30 p.m. unless the Monday is a school

holiday, in which case the visitation shall end on Monday at 6:30 p.m.” The court

also ordered that Karen be allowed daily phone calls with O.K.K. in addition to “a

midweek visitation by Face Time, Skype, or a similar digital provider where she

can interact with the child face-to-face.”
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       Karen challenges the visitation schedule ordered by the district court,

arguing it does not maximize her contact with O.K.K. The legislature has directed

the courts to award “liberal visitation rights where appropriate” in order to “assure

the child the opportunity for the maximum continuing physical and emotional

contact with both parents.”     Iowa Code § 598.41(1)(a).      In determining what

visitation is appropriate, our concern, once again, is the child’s best interests. See

In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992). Consequently,

the court must fashion a visitation schedule that serves the best interests of the

child. In re Marriage of Gensley, 777 N.W.2d 705, 718 (Iowa Ct. App. 2009).

Again, we give deference to the district court’s opportunity to view the witnesses

and determine the facts. See Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct.

App. 1994).

       Karen requests that she receive, “at a minimum,” visitation with O.K.K.

“every Thursday overnight and alternating weekends Thursday through Monday.”

We disagree.     Karen resides in Albia and Dalton resides in Leon.          It takes

approximately one hour and twenty minutes to drive between their homes.

Considering the child’s young age and the distance between the parties’ homes,

we find the visitation schedule set forth in the court’s order is in the child’s best

interests and affirm.

       IV. Child Support.

       The district court ordered Karen to pay $349.11 per month in child support.

It determined that Karen’s total gross annual income is $20,800. The court’s

calculation was based on Karen’s testimony that she works thirty hours per week

at Casey’s earning $10 per hour, which amounts to $15,600 gross income
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annually. Karen also testified that she works ten to fifteen hours per week at White

Buffalo Restaurant earning a minimum of $7.25 per hour and, with tips added in,

about $10 per hour. Based on this testimony, the court determined her earnings

from the restaurant amount to $5200 in gross income annually.               The court

determined that Dalton’s gross annual income is $39,312 per year based on his

fulltime work at Osceola Foods earning $18.90 per hour. Although Dalton earned

$53,000 in one year because of overtime, the court did not set his income higher

because it found Dalton testified that such a large amount of overtime may not be

available to him in the future. The court observed:

              In the past year, Dalton has become the primary caretaker of
       two very young children. Given these additional obligations, the
       Court does not expect Dalton to continue to work a lot of overtime,
       even if it is available to him. It will be to his children’s advantage to
       spend as much time as possible with them while they are young.
       Dalton asked that his income be limited to $40,000 per year for child
       support purposes, and the Court finds that this request is reasonable.

       “In Iowa, child support is calculated using the child support guidelines.” In

re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa 2018); see also Iowa Code

§ 598.21B(1); Iowa Ct. R. 9.2. “The purpose of the guidelines is to provide for the

best interests of the children by recognizing the duty of both parents to provide

adequate support for their children in proportion to their respective incomes.” Iowa

Ct. R. 9.3(1). “To compute the guideline amount of child support,” the district court

must first compute the adjusted net monthly income of each parent. Iowa Ct. R.

9.14. That amount is ascertained by first determining each parent’s gross monthly

income. See Iowa Ct. R. 9.14(1). Gross monthly income is the “reasonably

expected income from all sources.” Iowa Ct. R. 9.5(1).
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       Karen challenges the district court’s calculation of her child support

obligation, first arguing that the district court erred in calculating the amount of her

child support obligation by imputing to her more income than she actually earns.

“[T]he court shall not impute income” to a party “except . . . [p]ursuant to

agreement of the parties, or . . . [u]pon request of a party, and a written

determination is made by the court under rule 9.11.” Iowa Ct. R. 9.5(1)(d)(1), (2).

Rule 9.11(4) permits the court to

       impute income in appropriate cases subject to the requirements of
       rule 9.5. If the court finds that a parent is voluntarily unemployed or
       underemployed without just cause, child support may be calculated
       based on a determination of earning capacity. A determination of
       earning capacity may be made by determining employment potential
       and probable earnings level based on work history, occupational
       qualifications, prevailing job opportunities, earnings levels in the
       community, and other relevant factors. The court shall not use
       earning capacity rather than actual earnings or otherwise impute
       income unless a written determination is made that, if actual earnings
       were used, substantial injustice would occur or adjustments would
       be necessary to provide for the needs of the child(ren) or to do justice
       between the parties.

(Emphasis added); see also In re Marriage of McKenzie, 709 N.W.2d 528, 533

(Iowa 2006).

       We find the district court’s determination of Karen’s income was based on

her testimony regarding her current earnings. Although the amount of hours she

works at each job fluctuates, Karen testified that she typically works forty hours per

week. She also testified that although her earnings at the restaurant vary, she

would earn approximately $10 per hour with tips. Karen agreed that her gross

annual income would be $20,800. The court properly used this amount to calculate

her child support obligation.
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       Karen also argues that the district court erred in ignoring the amount of

Dalton’s overtime earnings when determining his annual gross income. “Overtime

wages are not excluded as income. Overtime wages are within the definition of

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

purposes.” In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992). However,

“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.

Furthermore, “a parent's child support obligation should not be so burdensome that

the parent is required to work overtime to satisfy it.” “[T]he burden is on the

recipient of the income to establish that it should be excluded from gross income

as uncertain and speculative.” Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005).

       Dalton earned $53,164.25 in 2016 when he worked “an awful lot of

overtime.”   O.K.K. was born in November 2016.            In 2017, Dalton’s income

decreased to $46,505.56. Although he still worked “quite a bit” of overtime in 2017,

Dalton testified that the circumstances were unique because he was covering

shifts for a co-worker who needed time off to attend to a sick loved one and

because he was trying to earn extra income to pay his attorney fees. Dalton’s son

was born in the latter half of 2017. Based on the circumstances cited by the district

court, it is reasonable to determine Dalton’s gross annual income to be $40,000. 1

Accordingly, we affirm the portion of the court’s order relating to child support.




1
  Because this is the circumstance anticipated at the time of the order, any significant
deviation from this amount would be grounds for a modification of Karen’s child support
obligation. See Iowa Code § 598.21C(1) (providing the court may modify child support
orders when there is a substantial change in circumstances).
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      V. Post-Secondary Education Subsidy.

      The statutory obligation to provide post-secondary education is contained

in our dissolution of marriage statute. Iowa Code §§ 598.1(8), 598.21F. This

support obligation applies only to individuals who were once married.          See

Johnson v. Louis, 654 N.W.2d 886, 890–91 (Iowa 2002) (rejecting an equal

protection challenge to this limitation).    Because there is no common law or

statutory right to such a subsidy for children born to unmarried parents, see id. at

888, we modify the order to eliminate the postsecondary education subsidy.

      VI. Attorney Fees

      Both parties request an award of their appellate attorney fees. We may

award the prevailing party reasonable attorney fees. See Iowa Code § 600B.26.

Whether to award attorney fees is a matter of discretion with our court. See

Markey, 705 N.W.2d at 26. In determining whether to award 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 trial

court's decision on appeal.” See id. (citation omitted). Although Dalton was

successful in the appeal, his need and Karen’s ability to pay weigh against an

award of appellate attorney fees. We decline to award either party appellate

attorney fees.

      AFFIRMED AS MODIFIED.
