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IN THE COURT OF APPEALS OF IOWA No. 1-032 / 10-1061 Filed February 23, 2011 IN RE THE MARRIAGE OF KYLE L. STONE AND DAWN R. STONE Upon the Petition of KYLE L. STONE, Petitioner-Appellant/Cross-Appellee, And Concerning DAWN R. STONE, Respondent-Appellee/Cross-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.

Kyle and Dawn Stone appeal from the economic provisions of the decree dissolving their marriage. AFFIRMED AS MODIFIED.

John R. Walker, Jr. and Kate B. Mitchell of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellant. Timothy M. Sweet of Beard & Sweet, P.L.C., Reinbeck, for appellee.

Considered by Vogel, P.J., and Doyle and Tabor, JJ.

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TABOR, J. This appeal from a dissolution decree presents us with questions concerning child support, spousal support, and attorney fees. Kyle Stone

contends his child support obligation should be recalculated using the revised guidelines and considering his spousal support payments, his spousal support obligation should be eliminated or reduced, and he should not be responsible for Dawn Stones attorney fees. Dawn cross-appeals, challenging the eventual

reduction in spousal support and the amount of attorney fees awarded. Because the district court recognized that it would be appropriate to consider Kyles alimony payments to Dawn when calculating his child support obligation and because this case was pending on July 1, 2009, we remand for the court to recalculate the child support using the revised guidelines. In all other aspects, we affirm the decree. I. Background Facts and Proceedings After six years of living together, Kyle and Dawn Stone married in October 1998. They had one son, born in 2000, and one daughter, born in 2002. 1

Neither Kyle nor Dawn went to college, but both have been very industrious during their relationship. Kyle worked primarily in the scrap metal trade and owned or partially owned several businesses. Dawn worked as a waitress and a video store manager before being hired in 1998 at Weyerhauser where she operated a die-cut machine.

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The parties resolved the issues of custody and visitation by stipulation and those are not being challenged on appeal.

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At the time of the dissolution trial in May 2009, Kyle was thirty-eight years old and in good health. Dawn was thirty-nine years old and had been off work since 2007 due to complications following several surgeries for a fractured foot. She also takes medication for narcolepsy, a sleeping disorder that hinders her ability to maintain gainful employment. She receives approximately $1200 per month in social security disability payments and the children receive $307 per month. Among the most contested issues at trial were the value of Kyles business ventures and the impact of an antenuptial agreement2 executed by the parties before the marriage. The district court engaged in a detailed and

thorough analysis of the history and operation of Kyles scrap metal and r elated businesses. Its determination of an appropriate value to place on Kyles

business interests was complicated by what the court termed his "deplorable" financing and accounting methods. Using the "going concern" valuation urged by Dawn rather than a liquidation value, the district court determined that Kyles business was worth approximately $630,000. The court then ordered Kyle to pay Dawn a property settlement of $188,000, which was the amount she sought as an "equalization payment." The court allowed Kyle to pay the settlement in

fifteen annual installments of $12,533.33, plus interest.

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The antenuptial agreement assigned to the parties the assets they held before the marriage. Kyles most significant asset was his fifty percent ownership of Strone Investments, which he estimated was then worth $100,000. The other half of the company was owned by Kyles partner Ben Stroh. Dawn possessed a residence in Waterloo valued at $33,000 with a $25,000 mortgage. The district court concluded that the agreement did not protect property acquired after the marriage nor did it cover Kyles businesses, which had "grown, merged, diverged, and warped into a variety of other business ventures."

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For purposes of calculating his child support obligation, the district court determined Kyles annual income to be $200,000, characterizing that amount as "a reasonable and even conservative estimate of his income through wages, distributions and cash transactions." The court ordered Kyle to pay $1787 per month in child support. The decree also ordered Kyle to pay Dawn traditional alimony in the amount of $1750 per month for fifteen years, then $1250 per month until he reaches the age of sixty-five, when the amount is reduced to $750 per month. Finally, the court ordered Kyle to pay $20,000 of Dawns attorney fees. The first $5000 in attorney fees was to be paid within thirty days of the decree, an additional $7500 within ninety days, and the final $7500 within onehundred and eighty days. Kyle appeals the child support, alimony, and attorney fee portions of the decree. In her cross-appeal, Dawn asks for the alimony to continue in the

original amount of $1750 per month and seeks a greater amount in trial attorney fees. She also requests appellate attorney fees. II. Scope and Standards of Review We review de novo claims of error in dissolution-of-marriage decrees. In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Although we decide the issues raised on appeal anew, we give weight to the district courts factual findings, especially regarding the credibility of the witnesses. Id. We defer to the district courts opinion regarding the believability of the parties because of the trial judges superior ability to gauge their demeanor. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct. App. 1996).

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Although our review is generally de novo, we give the district court considerable latitude in determining spousal support. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005). We will disturb the district courts

determination of an alimony issue only where there has been a failure to do equity between the parties. Id. Because interpretation of the child support guidelines is a legal question, our review on that issue is for errors at law. In re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004). We review an award of attorney fees for an abuse of discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). III. Analysis A. Child Support The district court ordered Kyle to pay child support in the amount of $1787 per month based on the child support guidelines in effect before July 1, 2009. The district court largely adopted proposed guideline worksheets completed by Dawn, imputing Kyles annual income as $200,000 and Dawns income as $22,128. On appeal, both parties agree that the district court should have used the current child support guidelines to determine Kyles obligation. See Iowa Ct. R. 9.1 (stating guidelines "apply to cases pending on July 1, 2009"); see In re Marriage of Roberts, 545 N.W.2d 340, 343 n.2 (Iowa Ct. App. 1996) (interpreting term "pending" in child support guidelines as including those cases pending on appeal as of the July 1 effective date). But they disagree whether the courts application of the previous guidelines is cause for remand. Kyle contends the

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matter should be remanded to the district court for recalculation of his child support obligation using the revised guidelines. He does not challenge the

district courts determination that his income was $200,000. Dawn argues that it is reasonable to assume that Kyles yearly earnings are as high as $250,000. She argues: "Utilizing this income in the Guideline calculations should yield She contends the

support at least as high as that awarded by the Court."

amount of child support ordered in the decree is "well supported" even un der the new guidelines and should be allowed to stand. The district courts determination of Kyles annual income as $200,000 was realistic based on the financial information available at trial and need not be disturbed on appeal. Dawn actually estimated Kyles income at the slightly lower figure of $199,272 in her child support worksheets submitted to the court before trial. We decline to embrace her assertion on appeal that "while we may never know the exact amount," it would be reasonable to impute ano ther $50,000 of personal income to Kyle. We find Dawns estimation of Kyles additional income too speculative to be included when calculating his child support. See In re

Marriage of Russell, 511 N.W.2d 890, 893 (Iowa Ct. App. 1993) ("[A]ll income that is not anomalous, uncertain, or speculative should be included when determining a partys child support obligations."). The parties debate another aspect of the child support order. Kyle

contends that the decree was inequitable in not accounting for the amount of alimony he was ordered to pay when figuring his child support obligation. The

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district court addressed Kyles argument in its ruling on the motions to reconsider: The Petitioner further asks for reconsideration of the child support award to reflect the alimony award to Respondent. Upon reflection, the Court believes that such reconsideration may be appropriate in light of the substantial alimony award. However, the Court finds that the Petitioner has not been paying his alimony obligation since the entry of this Order. As correctly pointed out by Respondent, Child Support Guideline Rule 9.5(8) allows the deduction for alimony actually paid. Given the Petitioners past financial maneuverings, this Court is not confident that the Petitioner will actually pay his alimony obligation even if child support is modified at this time. The district court went on to state that if Kyle could establish a track record of paying his alimony for at least twelve months, modification of the child support obligation may be warranted. The district court did not make a written finding that such a future variance from the guidelines would be necessary to do justice between the parties under the special circumstances of this case. See Iowa Ct. R. 9.11. On appeal, Kyle asserts that the district court erred in relying on rule 9.5(8), which allows deductions from a parents net monthly income for "prior obligations" of child and spousal support, but does not address obligations in the same decree. Dawn agrees in her brief that rule 9.5(8) may only be considered "by analogy" and not for direct authority on the question before the court. But she argues that equity does not require the court to deduct the alimony amount from Kyles income, because he does not come before the court with "cl ean hands"--having manipulated and concealed his true earnings.

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We defer to the district courts finding of "little or no credibility" in Kyles testimony concerning his finances. But we believe that lack-of-credibility finding is reflected in the courts assignment of an annual income of $200,000 to Kyle, rejecting Kyles own substantially lower estimate of $104,988 in annual income included in his proposed child support worksheet. We agree with the district courts inclination to adjust Kyles child support obligation in light of the substantial alimony he is ordered to pay. Iowa Ct. R. 9.4 (allowing amount of child support to be adjusted if necessary "to do justice between the parties"); see In re Marriage of Lalone, 469 N.W.2d 695, 697 (Iowa 1991) (finding district court properly exercised its discretion in considering large alimony payments expected of father in determining his child support). We disagree with the district courts view that the child support amount may only be modified if Kyle meets his spousal support obligation for one year. If Kyle does not meet his support obligation, Dawn may seek a rule to show cause to enforce the decree by a contempt sanction. 598.23A (2009). See Iowa Code

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