In re Marriage of Lyga

IN THE COURT OF APPEALS OF IOWA

No. 21-0156
Filed January 12, 2022

IN RE THE MARRIAGE OF KATHERINE C. LYGA
AND DALE E. LYGA JR.

Upon the Petition of
KATHERINE C. LYGA, n/k/a KATHERINE C. BANKERT,
Petitioner-Appellee,

And Concerning
DALE E. LYGA JR.,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,

Judge.

Dale Lyga appeals the decree dissolving his marriage to Katherine Lyga.

AFFIRMED AS MODIFIED.

Alexander S. Momany of Howes Law Firm, P.C., Cedar Rapids, for

appellant.

Kristen A. Shaffer of Shuttleworth & Ingersoll, P.L.C., Coralville, for

appellee.

Considered by Mullins, P.J., and May and Ahlers, JJ.
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MULLINS, Presiding Judge.

Dale Lyga appeals the decree dissolving his marriage to Katherine Lyga,

now known as Katherine Bankert. He argues the district court erred in placing

impermissible contingencies on visitation with the parties’ children, severely and

unreasonably limiting his visitation, awarding sole legal custody to Katherine,

miscalculating his income for purposes of child support, and failing to assign any

Arizona debt to Katherine. Katherine requests an award of attorney fees on

appeal.

I. Background Facts and Proceedings

Dale and Katherine married in 2015. The parties share two young children.

Katherine claims there has been emotional, verbal, and physical abuse over the

course of the parties’ marriage. Several of the incidents have involved Dale

consuming large amounts of alcohol. Katherine asserts that Dale has at times

threatened to kill her and her parents, using weapons the parties possessed in the

marital home.

The parties initially lived in Iowa but moved to Arizona, where Dale secured

a lucrative job. As the parties’ marriage continued to deteriorate, Katherine made

a plan to leave the home with the children and relocate to Iowa. Katherine began

proceedings for a protective order in Arizona, but the process was completed

following the relocation to Iowa. Katherine and Dale were able to agree to video

visits, but Dale missed many. Dale’s attempts to visit the children in Iowa were

minimal. He eventually relocated to Illinois, incurring $93,000.00 in debt due to

bonuses that had to be repaid to his employer in Arizona because Dale did not

maintain employment for the contractual length of time.
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Katherine petitioned for dissolution of the marriage in April 2020. Trial was

held in January 2021. The district court awarded Katherine sole legal custody,

granted Dale visitation, and ordered him to pay child support. The court also found

Dale had dissipated assets. Dale appeals.

II. Standard of Review

We review dissolutions of marriage de novo. In re Marriage of Miller, 956

N.W.2d 630, 635 (Iowa 2021). “We give weight to the factual determinations made

by the district court; however, their findings are not binding upon [this court].” Id.

(alteration in original) (quoting In re Marriage of Mann, 943 N.W.2d 15, 18 (Iowa

2020)). As to child custody, our principal consideration is the best interests of the

children. Iowa R. App. P. 6.904(3)(o); see In re Marriage of Weidner, 338 N.W.2d

351, 356 (Iowa 1983).

III. Analysis

A. Legal Custody

Dale argues the district court erred in failing to grant the parties joint legal

custody of the two children. Katherine argues the history of abuse in the family

justifies the award of sole legal custody. “‘Legal custody’ carries with it certain

rights and responsibilities, including but not limited to ‘decision making affecting

the child’s legal status, medical care, education, extracurricular activities, and

religious instruction.’” In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007)

(citation omitted). “A parent who is awarded legal custody has the ability to

participate in fundamental decisions about the child’s life.” Id. If either parent asks

the court for joint legal custody, a court must consider the factors set forth in Iowa

Code section 598.41(3) (2020). Those factors, in relevant part, include:
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a. Whether each parent would be a suitable custodian for the
child.
b. Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with
and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child’s needs.
d. Whether both parents have actively cared for the child
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child.
....
g. Whether one or both of the parents agree or are opposed
to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other
parent will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation.
j. Whether a history of domestic abuse, as defined in section
236.2, exists. In determining whether a history of domestic abuse
exists, the court’s consideration shall include but is not limited to
commencement of an action pursuant to section 236.3, the issuance
of a protective order against the parent or the issuance of a court
order or consent agreement pursuant to section 236.5, the issuance
of an emergency order pursuant to section 236.6, the holding of a
parent in contempt pursuant to section 664A.7, the response of a
peace officer to the scene of alleged domestic abuse or to the arrest
of a parent following response to a report of alleged domestic abuse,
or a conviction for domestic abuse assault pursuant to section
708.2A.
....

Iowa Code § 598.41(3).

The district court engaged in a thorough review of the evidence presented

at trial, including testimony from Katherine and other witnesses about the history

of domestic violence in the home. Katherine’s testimony revealed multiple

instances when Dale’s conduct placed her and the children in physical danger.

Testimony also revealed that Dale threatened the lives of Katherine and her

parents. The district court found “[t]he evidence established a pattern of physical,

emotional and verbal abuse clearly intended to control [Katherine] and prevent her
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from leaving the relationship. This pattern included regular threats of violence.” It

found that a history of domestic abuse was established, triggering a presumption

against joint legal custody. See id. § 598.41(1)(b). The court then continued its

evaluation of the particular facts and circumstances in the record, including

Katherine’s history as the primary caregiver of the children, her history of providing

stable care for the children, credible testimony that Dale has issues with alcohol

abuse, and Dale’s history of becoming angry when caring for the children. The

district court ultimately considered the factors enumerated in section 598.41(3) and

awarded sole legal custody of the two children to Katherine.

We review the record de novo, but give weight to the district court’s factual

findings. In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013). Katherine’s

testimony on the abusive nature of the parties’ marriage, although contested by

Dale, was credible. The district court’s evaluation of the section 598.41(3) factors

was thorough and its findings are supported by the evidence in the record. The

decree granting sole legal custody of the children to Katherine is in the children’s

best interest. We affirm the award of sole legal custody to Katherine.

B. Visitation

Dale argues the district court erred in placing contingencies on and limiting

his visitation with the children. Katherine argues the district court structured the

visitation arrangement to protect the children.

The district court imposed a step-up scheme, which provides Dale with

more unsupervised visitation with the children upon successful and consistent

exercise of visitation. The geographical location of visits has been limited for an

extended period of time to maintain physical proximity to Katherine. Dale is also
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barred from consuming alcohol of any type beginning twelve hours prior to

visitation and extending until the children are returned to Katherine. Dale has been

ordered to either personally transport the children or be physically present when

returning the children to Katherine’s care so that she “or her designee [may] smell

alcohol or see signs of intoxication if Dale has been drinking prior to the exchange.”

Iowa Code section 598.41(1)(a) provides that “liberal visitation rights” shall

be ordered to

assure the child the opportunity for the maximum continuing physical
and emotional contact with both parents after the parents have
separated or dissolved the marriage, 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,
other children, or a parent is likely to result from such contact with
one parent.

But, a court must evaluate the situation for reasonability and the best interests of

children. Iowa Code § 598.41(1)(a). This court has previously 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.

In re Marriage of Thielges, 623 N.W.2d 232, 237 (Iowa Ct. App. 2000). “Any

change of circumstances must be weighed with all the other relevant conditions

affecting physical care.” Id. at 238. Furthermore, “[i]t is well established that the

district court is the only entity that can modify a custody or visitation order, subject

to the review of the appellate courts.” In re Marriage of Stephens, 810 N.W.2d

523, 530 (Iowa Ct. App. 2012). However, a self-executing graduated visitation

arrangement that fosters rebuilding parent-child relationships may be in the best

interests of a child.
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On our review of the record, we agree with the district court that under the

circumstances of this case, a step-up scheme and geographical limitation impose

a reasonable structure to provide safety for the children and are in their best

interests, but we find a few of the provisions overreaching. We agree with the

district court’s decision to protect the children from Dale in the event he has

consumed alcohol and agree the children need time to rebuild their relationships

with their father through transitional arrangements designed for their protection.

But we are troubled by the requirement that the progressive steps for increasing

visitation require consecutive visitations, excusable only for illness of the children,

and the automatic restarting of the progressive steps for an unexcused failure. It

appears obvious that some of the provisions in the decree are efforts to wrest

control from Dale and provide more control to Katherine, but our focus must remain

on best interests of the children.

Consequently, we modify the visitation provisions to remove the

requirement of “consecutive” in each instance, except the consecutive weeks of

summer vacation visitation, and modify to remove the “start the count of visitations

over” provisions. We also modify said visitation provisions to delete the sentence

concerning sanctions for contempt and the sentence that follows. 1 If Dale fails to

regularly exercise visitation as ordered, he risks jeopardizing his relationship with

his children.

1 This is not intended to limit the available remedies in the event of a violation of
visitation provisions.
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C. Child Support

Dale argues the district court erred in calculating his income for the

purposes of child support. A parent has a duty to support children financially based

on the parent’s ability to pay. In re Marriage of Salmon, 519 N.W.2d 94, 97 (Iowa

Ct. App. 1994). Iowa courts have used average earnings rather than a parent’s

actual earnings for purposes of calculating child support when that parent’s income

is, or has been, subject to fluctuation. In re Marriage of Hagerla, 698 N.W.2d 329,

332 (Iowa Ct. App. 2005). “Iowa case law supports the proposition that in the

determination of child support or modification of a support order, a party may not

claim inability to pay child support when that inability is self-inflicted or voluntary.”

In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993) (collecting cases). The

spirit of that proposition is “to prevent parents from gaining an advantage by

reducing their earning capacity and ability to pay child support through improper

intent or reckless conduct.” Id.

Even though Dale relocated following the parties’ separation and got a job

in Illinois earning less money than when he lived in Arizona, there is no evidence

that the income reduction was aimed at reducing his child-support liability. Dale

testified that the relocation was an effort to be geographically closer to his children

and make in-person visits more affordable and, thus, more frequent. Dale does

not contest the fact that the $118,000 salary listed on his job offer letter was used

by the district court. He argues the additional $13,722 he receives in installments

of $527 every two weeks as a license premium should not have been added to his

annual salary. The record shows that throughout his history of employment, Dale

has consistently received premium payments in addition to his annual salary. See
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In re Marriage of Brown, 487 N.W.2d 331, 333–34 (Iowa 1992). There is nothing

in the record to suggest that the additional income will be discontinued. Finding

that the district court’s decision to add the premium payments to his annual salary

is not speculative, but rests on a consistent pattern of payment, we agree with the

district court’s calculation of Dale’s income for the purposes of calculating child

support. Id.

D. Debt

Dale argues the district court erred in failing to distribute any of the $93,000

debt from the family’s relocation to Arizona, and Dale’s return to the Midwest, to

Katherine.

The district court found the following facts regarding the debt. “Had [Dale]

stayed just a few months longer [in Arizona] he would have avoided any obligation

to pay back relocation funds of $63,588.74. If he had stayed just a little over a

year longer he would have avoided the obligation to pay back $30,000.00 in sign-

on bonuses.” The district court then found “that Dale dissipated the marital estate

by incurring the debt.” The court noted the benefit and purpose of the debt was

for Dale and that “there was not a great need for this expenditure and it was an

extravagant amount.” Finally, the district court noted that Dale’s move in

December 2020 did not ultimately serve its purpose—he was unable to exercise

more than a handful of in-person visits because of COVID-19 restrictions and the

visitation center’s availability.

“We have previously held dissipation of assets is a proper consideration

when dividing property.” In re Marriage of Fennelly, 737 N.W.2d 97, 104 (Iowa

2007). In evaluating whether assets have been dissipated, “courts must decide
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‘(1) whether the alleged purpose of the expenditure is supported by the evidence,

and if so, (2) whether that purpose amounts to dissipation under the

circumstances.’” Id. (quoting Lee R. Russ, Spouse’s Dissipation of Marital Assets

Prior to Divorce as Factor in Divorce Court’s Determination of Property Division,

41 A.L.R. 4th 416,421 (1985)). The second prong requires the court to consider

factors including:

(1) the proximity of the expenditure to the parties’ separation,
(2) whether the expenditure was typical of expenditures made by the
parties prior to the breakdown of the marriage, (3) whether the
expenditure benefitted the “joint” marital enterprise or was for the
benefit of one spouse to the exclusion of the other, and (4) the need
for, and the amount of, the expenditure.

Id. (citations omitted). Debt acquired by one party over several years may be

classified in part as waste and in other part legitimate expenses. Id. at 105–06.

Debt classified as waste is set aside as debt for the spending party and is not

considered in the distribution of property. Id. at 106.

Dale asserts that he incurred the debt in leaving his job in Arizona to avoid

spending approximately $1000 per visit to see the children in person. Katherine

did not contest that testimony. The debt was incurred following the parties’

separation, after Katherine secured a protective order allowing Dale only

supervised visitation with the children. The stipend was provided based on the

decision of both Dale and Katherine to move to Arizona, but the debt was incurred

unilaterally, with no input from Katherine. In fact, it was incurred after Katherine

fled the marital home with the children. Dale incurred the debt to avoid incurring

other debt—which would be attributable only to Dale in his efforts to exercise

visitation with the children. And as the district court pointed out in a footnote, he
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could have made ninety-three visits to the children for the same cost. We agree

with the district court that Dale was unable to rebut Katherine’s proof that he

dissipated the assets and that it should be his responsibility to repay.

E. Appellate Attorney Fees

Katherine requests an award of appellate attorney fees, arguing that she

has been forced to use funds to support the children and pay her attorney, and

requests an award of at least $7500. “Appellate attorney fees are not a matter of

right, but rather rest in [the appellate] court’s discretion.” In re Marriage of Okland,

669 N.W.2d 260, 270 (Iowa 2005). Appellate courts are tasked with considering

factors including “the needs of the party seeking the award, the ability of the other

party to pay, and the relative merits of the appeal.” In re Marriage of McDermott,

827 N.W.2d 671, 687 (Iowa 2013) (quoting Okland, 399 N.W.2d at 270). We

determine Katherine is entitled to an award of some appellate attorney fees, but

because Katherine’s affidavit of attorney fees does not include an itemization of

fees incurred, we remand to the district court to determine a reasonable award of

appellate attorney fees upon an application for fees supported by an itemization of

fees and expenses, to which Dale may file a response. See In re Marriage of

Heiar, 954 N.W.2d 464, 473–74 (Iowa Ct. App. 2020). Costs on appeal are

assessed to Dale.

IV. Conclusion

On our de novo review of the record, we agree with the district court that it

is in the best interests of the parties’ children to award sole legal custody to

Katherine. We also agree that the step-up visitation plan is in the best interests of

the children, subject to our modifications set forth above. We agree with the district
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court that Dale unilaterally incurred the $93,000 debt when he relocated from

Arizona to Iowa for his own purposes and benefit. Thus, the order that the debt be

assigned to Dale is affirmed. We remand to the district court the issue of appellate

attorney fees, and we tax costs to Dale.

AFFIRMED AS MODIFIED.