                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0054
                             Filed October 10, 2018


IN RE THE MARRIAGE OF KELLY LYNN ROHDE
AND JARED EUGENE ROHDE

Upon the Petition of
KELLY LYNN ROHDE,
      Petitioner-Appellee,

And Concerning
JARED EUGENE ROHDE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.




      Jared Rohde appeals from the district court’s modification of the decree

dissolving his marriage to Kelly Rohde. AFFIRMED.




      Jaclyn M. Zimmerman of Grefe & Sidney, P.L.C., Des Moines, for appellant.

      Amanda Green of Nading Law Firm, Ankeny, for appellee.



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

       Jared Rohde appeals from the district court’s modification of the decree

dissolving his marriage to Kelly Rohde. Jared challenges the court’s failure to

include the extraordinary visitation credit in calculating his child support obligation

as provided under the Child Support Guidelines. He also asserts the district court

should not have awarded Kelly any trial attorney fees. Both parties seek appellate

attorney fees. Upon our de novo review we affirm.

       I. Background Facts and Proceedings.

       In 2014, the district court entered a decree dissolving Jared and Kelly’s

nine-year marriage. The court approved and incorporated into the decree the

parties’ “Stipulation and Agreement.” The parties agreed they would share joint

legal custody of their two minor children, with the children placed in Kelly’s physical

care. An included schedule set forth the minimal visitation time Jared was to have

with the children:

       Visitation Schedule. Jared is awarded reasonable and liberal
       visitation with the minor children as follows:
               While School is in Session: Jared shall have visitation with
       the minor children the every other weekend commencing Friday after
       school (or 8:00 am, if no school) until Sunday night at 6:00 pm. and
       every Wednesday evening from 5:00 pm. to 8:00 pm.
               During the Children’s Summer Break from School: Each
       party is awarded two (2) consecutive weeks during the summer. The
       parties shall notify each other in writing. In even-numbered years
       Kelly shall give notice of her selected weeks to Jared in by June 1
       and Jared shall give notice to Kelly by June 15. In odd-numbered
       years Jared shall give Kelly notice of his selected weeks by June 1
       and Kelly shall give Jared notice of her selected weeks by June 15.

An agreed upon holiday parenting schedule was also included in the decree. The

court determined Jared’s child support obligation under the Child Support
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Guidelines was $1921.00 per month for two children and $1341.00 per month for

one child.

       In January 2017, Jared filed an application seeking modification of the

decree, asserting a substantial change in circumstances since entry of the decree

had occurred, including allegations that Kelly had failed to communicate with

Jared, failed to foster his relationship with the children, and failed to adhere to the

parties’ agreed visitation schedule. Jared requested the children be placed in his

care or in the parties’ shared care, if the court found the latter option to be in the

children’s best interests. Additionally, Jared requested, among other things, that

if the court found continued placement with Kelly was in the children’s best

interests, the visitation schedule be modified to afford him maximum continuing

contact with the children.    Kelly answered, denying the substantive claims of

Jared’s application. However, she agreed there had been a substantial change in

circumstances since entry of the decree relating to the parties’ income, and she

requested Jared’s child support obligation be modified. She also requested Jared

be ordered to pay a reasonable portion of her attorney fees. In April 2017, the

court entered an order approving the parties’ temporary stipulation and agreement

that Jared would pay $2300 per month in child support.           Prior to trial, Jared

amended his application for modification by removing his requests for placement

of the children in his physical care or for shared physical care.

       Trial was held in August 2017 on the issues of Jared’s request to increase

visitation and Kelly’s request for modification of child support. On September 19,

2017, the court entered its order modifying the 2014 decree. The order increased
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Jared’s visitation with the children and his child support obligation. The court

ordered the following visitation schedule:

      Visitation:
              a. Every other weekend from Friday beginning immediately
      after school, or at 8:00 a.m., if there is no school, until Monday, when
      the minor children are delivered to school/daycare, or until 8:00 a.m.,
      if there is no school/daycare.
              b. Week one (the week leading into [Jared’s] weekend
      visitation in paragraph “a.”: On Wednesday, beginning immediately
      after school, or beginning at 5:00 p.m., if there is no school, until
      Thursday, when the minor children are delivered to school/daycare,
      or until 8:00 a.m., if there is no school/daycare.
              c. Week two (the week following [Jared’s] weekend visitation
      in paragraph “a.”. On Tuesday, beginning immediately after school,
      or beginning at 5:00 p.m., if there is no school, until Thursday, when
      the minor children are delivered to school/daycare, or until 8:00 a.m.,
      if there is no school/daycare.
      Holiday and Special Day Parenting Time:
              All other provisions concerning holiday and other special day
      parenting time shall remain consistent with the parties’ [original
      decree], unless otherwise set-forth below:
              a. Beggar’s Night: The parties shall alternate in having the
      children for Beggar’s Night; odd-numbered years shall be with [Kelly]
      in [Kelly’s] residential community from immediately after school until
      8:00 p.m. and even-numbered years shall be with [Jared] in [Jared’s]
      residential community, from immediately after school until 8:00 p.m.
              b. Children’s Birthdays: The parties shall alternate in having
      the minor children for their birthdays every other year and
      acknowledge that the minor children have the same birthdate.
      Parenting time shall be from 8:00 a.m. if there is no school/daycare
      or from immediately after school/daycare, and continuing until the
      following day when the minor children are delivered to
      school/daycare or until 8:00 a.m. if there is no school/daycare. [Kelly]
      shall have the minor children on E.R. and J.R.’s birthday in odd-
      numbered years and [Jared] shall have the minor children on E.R.
      and J.R.’s birthday in even numbered years.
      Summer Break Parenting Time:
              The parties shall continue to select and exercise their two (2
      Summer Break Parenting Time The parties shall continue to select
      and exercise their two (2) two-week periods of Summer Break
      parenting time in keeping with the provisions contained in their
      original [decree].
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The parties were encouraged to work together to accommodate a requested

change of schedule, but the court directed that if the parties could not reach a

mutual agreement, they were to follow the regular schedule.

       The court found Kelly’s annual income to be $7000 and Jared’s $212,000.

Finding a substantial injustice would occur if the parties’ earning capacities rather

than their actual earnings were used, the court determined Jared’s child support

obligation under the Child Support Guidelines was $2249.47 per month for two

children and $1548.97 for one child. The court ordered Jared to pay $5000 of

Kelly’s trial attorney fees.

       Jared subsequently filed a motion pursuant to Iowa Rule of Civil Procedure

1.904(2) asking the court amend and enlarge the modification order.             Jared

asserted the court’s modified visitation schedule increased his number of overnight

visits, qualifying him for application of the extraordinary visitation credit under the

guidelines. He noted the court’s child-support-obligation calculation did not include

the credit, and no explanation for this was provided. Jared requested the court

amend its order to recalculate his support obligation. Jared also requested the

court reconsider its award of attorney fees to Kelly, arguing that he was the

prevailing party in the case and should not be required to pay her fees.

       Kelly resisted, though she agreed with Jared that, under the guidelines, the

court was required to make a finding of fact supporting its decision to deviate from

the guidelines to omit application of the extraordinary visitation credit.       Kelly

asserted a deviation from the guidelines was necessary to avoid causing her

severe financial hardship. She requested the court amend its order to include such

factual finding to support the deviation from the guidelines.
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       The court denied Jared’s motion on December 12, 2017. The court found

Jared was only seeking “to rehash legal issues raised and decided adversely to

[him] and no underlying factual issue remains.” The court did not address the

matter any further.

       On January 8, 2018, Jared filed his notice of appeal; more than thirty days

from the date of the filing of the modification order, but within thirty days of the

denial of his rule 1.904(2) motion.

       II. Discussion.

       Jared preemptively contends his appeal is properly before this court,

insisting his rule 1.904(2) motion was not a mere rehashing of the legal arguments

raised at trial and thus the time for filing the notice of appeal did not begin to run

until the district court filed its ruling on the motion. Jared further argues the court

should have applied the extraordinary visitation credit, and he requests the child

support award be vacated and recalculated. He also asserts he was the prevailing

party in the district court case, and the district court erred by awarding trial attorney

fees to Kelly. Both Jared and Kelly request appellate attorney fees.

       A. Jurisdiction.

       “The timeliness of the filing of a notice of appeal is a jurisdictional question.”

Homan v. Branstad, 887 N.W.2d 153, 159 (Iowa 2016). Generally, a notice of

appeal must be filed within thirty days from the entry of a final order or judgment.

See Iowa R. App. P. 6.101(1)(b). A timely rule 1.904(2) motion extends the time

for appeal such that the appeal must be filed within thirty days of the filing of the

district court ruling on that motion. Id.
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       Kelly argues because Jared’s motion raised legal issues and not issues of

fact for the court to reconsider, the motion was not a proper motion and did not toll

the time to file the appeal.    Thus, Kelly asserts the appeal is untimely. We

disagree.

       Iowa Rules of Civil Procedure 6.101(1) and 1.904 were amended in

November 2016. Rule 6.101(1)(c) now provides: “[A] motion is considered timely

if it has been filed by the applicable deadline and asks the court to reconsider,

enlarge, or amend its order, ruling, judgment, or decree. Whether a motion is

proper or not does not affect its timeliness.” Rules 1.904(3) and 1.904(4) were

added. Rule 1.904(3) provides: “In addition to proceedings encompassed by rule

1.904(1), a rule 1.904(2) motion to reconsider, enlarge, or amend another court

order, ruling, judgment, or decree will be considered timely if filed within 15 days

after the filing of the order, ruling, judgment, or decree to which it is directed.”

These rule changes took effect on March 1, 2017. The comment to rule 1.904

explicitly states that,

       Rules 1.904(3) and 1.904(4) supersede prior case law that held a
       timely rule 1.904(2) motion must also have been “proper” to extend
       the time for appeal. To obviate controversies over whether a rule
       1.904(2) motion tolls the time for appeal, the rule authorizes any
       timely rule 1.904(2) motion to extend the appeal deadline, subject to
       one exception in rule 1.904(4).

(Internal citation omitted). The comment to rule 6.101(1)(c) mirrors this comment.

These rule changes were in effect when the district court’s initial modification ruling

was entered in September 2017. Jared timely filed his rule 1.904(2) motion. Under

the amended rule, it matters not whether his motion was “proper.” The time for

filing his notice of appeal was tolled and did not begin to run until the court ruled
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on his motion. That was December 12, 2017. His notice of appeal was filed a few

weeks later on January 8, 2018. His notice of appeal was timely filed.

       Moreover, it is clear the rule 1.904(2) motion was “proper.” The district court

did not explain why it failed to include the credit in its child support calculation in

the modification order.     Kelly even conceded this fact in her response and

requested the court rule on the matter. The district court did not, and in denying

the motion, concluded Jared’s motion “seeks only to rehash legal issues raised

and decided adversely to her and no underlying factual issue remains.” The

comments to the amended rules reflect an intent to eliminate disputes such as this

one. Because Jared’s notice of appeal was timely filed, we have jurisdiction to

hear his claims.

       B. Child Support.

       We review a district court’s modification of a decree, including child-support

provisions, de novo. See In re Marriage of McKenzie, 709 N.W.2d 528, 531 (Iowa

2006); In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). We are not

bound by the district court’s findings, but we do give weight to those fact-findings,

particularly its credibility findings. See McKenzie, 709 N.W.2d at 531. Moreover,

“we recognize that the district court ‘has reasonable discretion in determining

whether modification is warranted and that discretion will not be disturbed on

appeal unless there is a failure to do equity.” Id. (cleaned up).1 Ultimately, the

“controlling consideration” is the children’s best interests. See In re Marriage of


1
 “Cleaned up” is a relatively new parenthetical used to indicate that internal quotation
marks, alterations, and citations have been omitted from quotations for readability
purposes. See United States v. Steward, 880 F.3d 983, 986 n.3 (8th Cir. 2018); Jack
Metzler, Cleaning Up Quotations, 18 J. App. Prac. & Process 143 (Fall 2017).
                                          9

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). This allows appellate courts “the

flexibility necessary to consider unique custody issues on a case-by-case basis.”

See id. (cleaned up).

       The child support guidelines adopted by the Iowa Supreme Court provide

for an “extraordinary visitation credit” if the noncustodial parent’s court-ordered

visitation exceeds 127 days per year. See Iowa Ct. R. 9.9. For the purpose of this

credit, “days” means overnights spent caring for the child. Id. Kelly does not

dispute Jared’s increased visitation under the modified schedule meets the

requirement of the rule. However, she argues she, a stay at home mother whose

income is substantially lower than Jared’s, would suffer a financial hardship if the

credit were to be included in the calculation. She also notes Jared stated at trial

that he did not care about the child support. She asserts “[t]here was sufficient

testimony to support the court’s order” or “[a]t most, this matter should be

remanded to the trial court to include a specific written finding about the deviation

from the guidelines.”

       It is clear there is “a rebuttable presumption that the amount of child support

which would result from the application of the guidelines . . . is the correct amount

of child support to be awarded.” Iowa Code § 598.21B(2)(c) (2017); In re Marriage

of Mihm, 842 N.W.2d 378, 384 (Iowa 2014). Specifically, the guidelines’s purpose

“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).     The guidelines normally provide

reasonable support. See id.
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       Rule 9.9 states if the noncustodial parent’s court-ordered visitation exceeds

127 days per year, the noncustodial parent “shall” receive the extraordinary

visitation credit. See Iowa Code § 4.1(30)(a) (stating the legislature’s use of the

word “shall” imposes a duty); In re Marriage of Thatcher, 864 N.W.2d 533, 539

(Iowa 2015) (“In a statute, the word ‘shall’ generally connotes a mandatory duty.”

(citation omitted)). When applicable, the credit is mandatory—unless the court

finds the credit to be unjust or inappropriate under the circumstances. “A variation

from the guidelines shall not be considered by a court without a record or written

finding, based on stated reasons, that the guidelines would be unjust or

inappropriate . . . .” Iowa Code § 598.21B(2)(d).

       At trial Jared testified, “I just want to say one thing. I don’t care about the

child support.” He agreed he was not really concerned what his child support was

set at. He was asked, “So you would stipulate today that your child support would

stay where it is right now?” Jared responded, “I would.” He acknowledged the

extraordinary visitation credit would decrease the money Kelly had to care for the

children and that the children’s overnight visits with him would not decrease her

expenses. Jared, understanding that the extraordinary visitation credit would

reduce his child support obligation, said Kelly “can have the child support money.”

In view of his trial testimony, it seems disingenuous that Jared would assert the

district court erred in failing to incorporate the extraordinary visitation credit in the

child support award.

       Although the district court did not make a written finding or record stating

reasons for deviating from the guidelines when it did not apply the extraordinary

visitation credit, we review the matter de novo. After reviewing the record, and
                                          11


considered the unique custody issues in this case, the disparity in incomes of the

parties, and Jared’s testimony, we find it was equitable not to apply the

extraordinary credit to Jared’s child support obligation. We therefore affirm the

district court’s child support award.

       C. Trial Attorney Fees.

       Jared argues the district court erred in awarding Kelly $5000 for trial

attorney fees, asserting he prevailed in the matter. Pursuant to Iowa Code section

598.36, attorney fees on modification may be awarded to a prevailing party at the

court’s discretion.    “[W]e give the district court considerable discretion in

determining whether it should award fees at the district court level.” In re Marriage

of Michael, 839 N.W.2d 630, 639 (Iowa 2013). An abuse of discretion occurs when

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

untenable or to an extent clearly unreasonable.” State v. Nelson, 791 N.W.2d 414,

419 (Iowa 2010); Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

       Though Jared’s visitation with the children was increased, Kelly was also

successful modifying the child support obligation. Considering the parties’ relative

incomes and other relevant factors, we cannot say the court’s award of $5000 in

attorney fees to Kelly was clearly untenable or to an extent clearly unreasonable.

Consequently, Jared has failed to show the court’s trial attorney fee award was an

abuse of its discretion.

       D. Appellate Attorney Fees.

       Finally, both parties have requested an award of appellate attorney fees.

On appeal, “attorney fees are not a matter of right, but rather rest in this court’s

discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We
                                           12


consider the needs of the party seeking the award, the ability of the other party to

pay, and the relative merits of the appeal. See id. Here, Jared was the prevailing

party on one of the issues. Considering pertinent factors, we decline to award

attorney fees on appeal to either party.

       III. Conclusion.

       We affirm the district court’s order. Any costs on appeal are assessed

equally.

       AFFIRMED.
