                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0736
                            Filed January 28, 2015


UPON THE PETITION OF
FADIEA HABHAB,
Petitioner-Appellee,

AND CONCERNING
ERICK VALERIO SOSA,
Respondent-Appellant.
________________________________________________________________


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

McGlynn, Judge.



      Erick Valerio Sosa appeals from the district court’s decree of custody and

support of the parties’ minor child. AFFIRMED AS MODIFIED.



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

      Dani L. Eisentrager, Eagle Grove, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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POTTERFIELD, J.

       Erick Valerio Sosa appeals from the district court’s decree of custody,

visitation, and support of the parties’ minor child. He contends the court erred in

failing to find a common law marriage existed between him and Fadiea Habhab.

He also argues the district court erred in its calculation of child support to be paid

by Fadiea and by including certain modification triggering provisions in the

decree. We affirm the decree as modified.

I. Background Facts and Proceedings.

       Fadiea and Erick, both twenty-three years of age at the time of the trial,

had a very short-term romantic relationship in 2010. They moved in together in

Erick’s parents’ home on Valentine’s Day 2010 having just met each other, they

found out Fadiea was pregnant a few weeks later, and within a month their

relationship ended. Fadiea moved to Texas for several months, but returned to

Iowa before their child was born on November 16, 2010.        Erick was not present

at the child’s birth. At the time the child was born, Fadiea was residing with a

friend in Iowa Falls. About two weeks later she and the baby moved to Webster

City to live with Fadiea’s sister.     Fadiea began to suffer from postpartum

depression. She heard voices telling her to harm the infant. On December 18,

2010, Fadiea placed the child with her aunt and uncle in Laurens. Fadiea was in

a mental health ward of a hospital for several days and was discharged just

before Christmas. She then lived with her aunt, uncle, and the child for about six

months in Laurens. Although Fadiea was in the home, she admitted that her

aunt and uncle were the caregivers of the child.
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        When the child was about eight months old, the Department of Human

Services (DHS) became involved. Erick then also became involved in the child’s

life.   A child support action was commenced and Erick’s paternity was

established. DHS sought a child-in-need-of-assistance (CINA) adjudication for

the child and with the agreement of both parents the child was adjudicated to be

a CINA. Services were offered by DHS to both Fadiea and Erick. Fadiea made

no progress toward reunification. Erick, however, met the expectations of DHS

and, in June 2012, the child was placed in Erick’s custody, where he has

remained. The CINA case was closed in January 2013.

        On July 16, 2013, Fadiea filed a petition to establish custody, visitation,

and support. In an amended answer, Erick asserted the parties had a common

law marriage. Trial was held on March 11–12, 2014, after which the district court

concluded Erick had not established a common law marriage existed.               The

parties were granted joint legal custody and the child was placed in Erick’s

physical care. The court’s decree established visitation and set child support.

The court included these provisions in the decree:

               1. No common law marriage existed between Fadiea
        Habhab and Erick Sosa Valerio and the parties remained single
        persons at all times.
               ....
               4. If Erick relocates the residence of the minor child to a
        location which is 150 miles or more from the residence of the minor
        child at the time of this decree, or if any adverse action is taken by
        immigration authorities against Erick, the Court may consider the
        relocation or the adverse actions of immigration authorities a
        substantial change in circumstances and the provisions of Iowa
        Code Section 598.21(b) [sic] shall apply in the Court’s
        consideration of a possible modification of this decree.
               5. Fadiea shall pay child support to Erick in the amount of
        $114.00 per month and medical support of $89.07 per month
        beginning April 1, 2014, and continuing thereafter until the child
                                          4


       turns 18 or graduates from high school, whichever is last to occur.
       The Court retains jurisdiction regarding child support, medical
       support, and tax exemption issues in the event Fadiea’s income
       increases to the point where there is a ten percent discrepancy in
       the amount of child support pursuant to the guidelines.

       Erick now appeals. He contends the district court erred in failing to find a

common law marriage existed between him and Fadiea. He also argues the

district court erred in calculating Fadiea’s child support. Finally, he objects to the

certain modification triggering provisions in the decree. Fadiea has filed no brief

with this court.

II. Standard of Review.

       We review claims of common law marriage de novo. In re Marriage of

Martin, 681 N.W.2d 612, 616 (Iowa 2004).

       Issues ancillary to a determination of paternity are tried in equity. Markey

v. Carney, 705 N.W.2d 13, 20 (Iowa 2005). We review equitable actions de

novo. Iowa R. App. P. 6.907. We have a duty to examine the entire record and

adjudicate anew the rights on the issues properly presented. In re Marriage of

Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). When we consider the

credibility of witnesses in equitable actions, we give weight to the findings of the

district court, but are not bound by them. Iowa R. App. P. 6.904(3)(g).

III. Discussion.

       A. Common Law Marriage.            Iowa recognizes both ceremonial and

common law marriages. Martin, 681 N.W.2d at 617. “Although a common law

marriage is as valid as a ceremonial marriage, there is no public policy favoring

this type of marriage.” Id. The burden of proof lies with the party asserting the

existence of a common law marriage. In re Marriage of Winegard, 278 N.W.2d
                                             5

505, 510 (Iowa 1979) (hereinafter Winegard II). “[S]uch a claim of marriage will

be regarded with suspicion.” Id.

         To establish he and Fadiea entered into a common law marriage, Erick

had the burden to prove by a preponderance of evidence these three elements:

(1) a present intent and agreement by both parties to be married, (2) continuous

cohabitation, and (3) public declaration they were husband and wife. See id. A

failure to prove any of the three elements dooms the claim to a common law

marriage. Id.

         On our de novo review, we conclude Erick failed to prove at least two

elements of his claim—a present intent by both parties to be married and a public

declaration of marriage.        The two parties were involved in very short term

relationship when they were nineteen years old1 and they moved into Erick’s

parents’ home. Erick’s parents were conservative religious people who spoke

only Spanish. Erick’s mother testified Erick told her the two were married. When

asked if Fadiea said they were married, Erick’s mother stated, “No. She didn’t

say anything.” Erick’s aunt testified the two were married, but when asked why

she believed they were married, she stated, “[S]he was pregnant, they were

together. They lived together.”

         As noted by the district court:

         Fadiea and Erick were involved in a short term relationship when
         they decided to move in together. They cohabitated for a total of
         about one month. During this one-month period [the child] was
         conceived. Erick submitted a copy of a note Fadiea wrote
         apparently in the form of a prayer in which she signed Erick’s last
         name, Valerio, and a document which Fadiea apparently signed
         identifying Erick’s sister as Fadiea’s sister-in-law. Erick testified

1
    Fadiea announced on social media that she was in and out of “love” quickly and often.
                                         6


      that he and Fadiea were introduced to his family and to his church
      as husband and wife, however, he had filed his tax returns as
      single. Fadiea strongly denies any common law marriage existed.
      Her family, including her mother, never [was] advised of a marriage.
      Except for the two documents submitted by Erick, there was no
      other proof that Fadiea has held herself out to be Erick’s wife. . . .
               Even if Erick made statements to his family that he and
      Fadiea were married, Fadiea cannot be considered to have
      adopted any of those statements as true for the simple fact of the
      language barrier. Erick’s mother and other family members all
      required the assistance of an interpreter to testify at trial. Any
      statements Erick may have made to his family or to the members of
      their church certainly would have been in Spanish and it does not
      appear that Fadiea spoke any Spanish at the time. All Erick has
      really shown is that he held out the couple as being married, not
      that the couple held themselves out as being married. The
      reference to Erick’s sister as Fadiea’s sister-in-law very likely was
      an expedient tactic to obtain housing. The note which Fadiea
      signed appears to be a private prayer and hope for the future,
      certainly not a public declaration. It would be reasonable to
      assume that Fadiea’s family would have known of a marriage if in
      fact it had occurred.

The trial court specifically found Fadiea’s testimony more credible on this issue.

We affirm.

      B. Child support. The record establishes that shortly before the trial in this

matter, Fadiea was terminated by Hagie Manufacturing in Clarion, where she

earned about $26,300 per year. Erick asked that the court impute that income to

Fadiea for purposes of establishing child support. The district court declined,

      It is true that Fadiea had a job which paid over $26,000 per year,
      but she was fired from it. At the time of trial she testified she was
      unemployed and had not yet been approved for unemployment.
      The Court FINDS that the minimum wage for 40 hours per week
      should be imputed to Fadiea for child support purposes at this time.

The court retained jurisdiction “regarding child support, medical support, and tax

exemption issues in the event Fadiea’s income increases to the point where

there is a ten percent discrepancy in the amount of child support pursuant to the
                                        7


guidelines.” On appeal, Erick challenges the court’s finding that Fadiea’s earning

capacity is minimum wage, arguing the finding creates a substantial injustice

between the parties.

      “Before applying the guidelines there needs to be a determination of the

net monthly income of the custodial and noncustodial parent at the time of the

hearing.” In re Marriage of Kupferschmidt, 705 N.W.2d 327, 332 (Iowa Ct. App.

2005). Iowa Court Rule 9.5 provides, “To determine gross income, the court

shall not impute income under rule 9.11 except: (a) Pursuant to an agreement of

the parties, or (b) Upon request of a party, and a written determination is made

by the court under rule 9.11.” Erick asserts both parties agreed that income

should be imputed.

      Rule 9.11(4) provides the court “may impute income in appropriate cases.”

That paragraph continues:

      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, earning
      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.

Iowa Ct. R. 9.11(4).

      Fadiea was not voluntarily unemployed at the time of trial. Except for the

job from which she was terminated, she has held numerous, short-term positions

earning $7 to $8 per hour. We find no reason to disturb the court’s child support
                                            8


calculations, particularly in light of the court’s retention of jurisdiction to modify

the support should Fadiea’s income increase sufficiently.

         C. Triggering provision.     Lastly, Erick argues the district court’s order

improperly includes a mandatory triggering mechanism for modification of the

custody provision. Erick contends two statements of the district court’s decree

violate the principle that the trial court is not to predetermine what future

circumstances will warrant a modification. See In re Marriage of Thielges, 623

N.W.2d 232, 237-38 (Iowa Ct. App. 2000). First, in its findings, the trial court

wrote:

         The Court FINDS that under the circumstances Fadiea’s concerns
         can be addressed by awarding joint legal custody and by providing
         in the decree that in the event the child is moved more than 150
         miles from his current home or if Erick is the subject of any adverse
         immigration action whatsoever, such facts would constitute a
         material and substantial change of circumstance justifying a
         modification of the custody arrangement.

(Emphasis added.) The court then decreed:

                4. If Erick relocates the residence of the minor child to a
         location which is 150 miles or more from the residence of the minor
         child at the time of this decree, or if any adverse action is taken by
         immigration authorities against Erick, the Court may consider the
         relocation or the adverse actions of immigration authorities a
         substantial change in circumstances and the provisions of Iowa
         Code Section 598.21(b) shall apply in the Court’s consideration of a
         possible modification of this decree.

(Emphasis added.)

         In Thielges, this court stated:

                We strongly disapprove, however, of custody provisions,
         whether stipulated by the parties or mandated by the court, that
         predetermine what future circumstances will warrant a future
         modification. A court should not try to predict the future for families,
         nor should it try to limit or control their actions by such provisions.
         Such provisions, besides misleading the parents, seem to provide
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       that one event alone will mandate a change of physical care. This
       is an erroneous notion. Any such change of circumstances must
       be weighed with all the other relevant conditions affecting physical
       care.

623 N.W.2d at 237-38 (citations omitted).

       We agree that the first quoted sentence found on page twelve of the

decree will be stricken because it provides that certain circumstances “would

constitute a material and substantial change of circumstance justifying a

modification of the custody arrangement.” Even if we agree that factors might

constitute a change of circumstances, any changes of circumstances “must be

weighed with all the other relevant conditions affecting physical care.” Id.; see

also Iowa Code § 598.21D.2 Paragraph 4 does not similarly predetermine what

will constitute a change of circumstances requiring a modification.               It states

certain factors that the court “may consider” in considering “a possible

modification of this decree.”      Nonetheless, the paragraph cites a nonexistent

2
 Iowa Code section 598.21D provides:
               If a parent awarded joint legal custody and physical care or sole
      legal custody is relocating the residence of the minor child to a location
      which is one hundred fifty miles or more from the residence of the minor
      child at the time that custody was awarded, the court may consider the
      relocation a substantial change in circumstances. If the court determines
      that the relocation is a substantial change in circumstances, the court
      shall modify the custody order to, at a minimum, preserve, as nearly as
      possible, the existing relationship between the minor child and the
      nonrelocating parent. If modified, the order may include a provision for
      extended visitation during summer vacations and school breaks and
      scheduled telephone contact between the nonrelocating parent and the
      minor child. The modification may include a provision assigning the
      responsibility for transportation of the minor child for visitation purposes to
      either or both parents. If the court makes a finding of past interference by
      the parent awarded joint legal custody and physical care or sole legal
      custody with the minor child's access to the other parent, the court may
      order the posting of a cash bond to assure future compliance with the
      visitation provisions of the decree. The supreme court shall prescribe
      guidelines for the forfeiting of the bond and restoration of the bond
      following forfeiting of the bond.
(Emphasis added.)
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code section and states nothing more than is provided by law.         We strike

numbered paragraph 4 on page twenty of decree. We affirm the court’s decree

as modified.

      IV. Attorney Fees.

      Erick requests an award of appellate attorney fees. The Martin court held

attorney fees incurred to prosecute or defend an action to establish and dissolve

a common law marriage were allowable under Iowa Code section 598.11, as

long as there was a fair presumption of the existence of a common law marriage,

even if the court finds no such marriage existed.      681 N.W.2d at 619–20.

Regardless of whether attorney fees would be available to the parties in this

case, we decline to award them.

      Costs are assessed one-half to Erick and one-half to Fadiea.

      AFFIRMED AS MODIFIED.
