IN THE COURT OF APPEALS OF IOWA

No. 14-2135

Filed November 25, 2015

KEVIN RYAN JOHNSTON,

Petitioner-Appellee, 

vs. 

KATELYN ELIZABETH PEREZ 

VAN DAM, f/k/a KATELYN 

ELIZABETH EVANS,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Dustria Relph, Judge. 

Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of 

her petition for modification of a decree of dissolution, and the calculation of child 

support. AFFIRMED. 

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

Jeremy M. Evans of Sporer & Flanagan, P.L.L.C., Des Moines, for 

appellee.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

Katelyn Perez Van Dam appeals an attorney fee sanction, the denial of 

her petition for modification of a decree of dissolution, and the calculation of child 

support. She requests appellate attorney fees. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS

Katelyn Perez Van Dam and Kevin Johnston have one child, A.R.J, who 

was born in 2009. The parties were never married. In September 2011, the 

parties agreed to, and the court approved, joint legal custody and physical care

of the child. 

Katelyn filed a petition for modification on July 1, 2014, claiming a 

substantial change in circumstances. She requested the court modify the 

custody decree and grant her physical care of the child, with reasonable visitation 

to Kevin. On August 11, Katelyn requested a hearing on temporary matters as 

the parties were disputing where the child should attend kindergarten. Kevin 

responded by filing an application to show cause requesting Katelyn be found in 

contempt for enrolling the child in a school district not listed in the decree. 

On August 26 a hearing was held on the two motions. The court 

dismissed the application for rule to show cause at Kevin’s cost. The court 

declined to rule on Katelyn’s petition for modification and directed the parties to 

obtain a trial date, which was later set for November 10. Kevin then filed a 

motion to enforce the custody decree. On October 2, a hearing was held on the 

motion. The district court denied the motion finding the issue presented was 

previously ruled upon. 
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Before the trial on Katelyn’s petition, both parties filed multiple motions. 

Katelyn filed a combined motion in limine, objection to petitioner’s witnesses and 

exhibits, and motion for sanctions. Katelyn requested sanctions for Kevin’s 

failure to produce responses to her discovery requests, his failure to timely 

provide a witness and exhibit list, and copies of his proposed exhibits. On 

November 9, Kevin filed a motion to dismiss Katelyn’s petition for modification 

and enter a declaratory order stating that the child should attend one of the 

school districts listed in the decree. He also filed a motion in limine to exclude 

“any and all evidence not previously presented to a parenting coordinator,” citing

a paragraph of the decree allowing the appointment of a parenting coordinator to 

settle the parties’ disputes. 

A trial on all issues was held on November 10. The court found Katelyn 

failed to show a substantial change in circumstances to modify the decree. With 

the parties’ agreement, and in the child’s best interests, the court modified the 

parenting schedule. The court found the West Des Moines school district to be 

the most suitable for the child, set Kevin’s child support at $113.06 per month,

and reaffirmed the other provisions of the original decree. Concerning the pretrial motions, the court denied Katelyn’s motion in limine, but granted her motion 

for sanctions. The court found: 

it appropriate to sanction [Kevin] for his well-documented failure to 

respond to [Katelyn’s] discovery requests and abide by trial 

scheduling orders. [Kevin’s] delays have caused [Katelyn] to incur 

significant additional attorney fees. Accordingly, and pursuant to 

Iowa Rule of Civil Procedure 1.602(5), [Kevin] is sanctioned in the 

amount of $ 1,000.00, which shall be payable to [Katelyn’s] attorney 

within 90 days of entry of this order. 
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The court denied Kevin’s motion to dismiss and motion in limine. 

Katelyn appeals. 

II. STANDARD OF REVIEW

We review a district court’s decision on whether to impose sanctions for 

an abuse of discretion. Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 

2009). “We find such an abuse when the district court exercises its discretion on 

grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464–65 (Iowa 1993). 

“‘Unreasonable’ in this context means not based on substantial evidence.” Id.

This modification action was tried in equity, and our review is de novo. 

Iowa R. App. P. 6.907; In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006). 

However, we give weight to the trial court’s findings because it was present to 

listen to and observe the parties and witnesses. In re Marriage of Zebecki, 389 

N.W.2d 396, 398 (Iowa 1986); see also Iowa R. App. P. 6.904(3)(g). 

III. DISCUSSION

A. Motion for Sanctions

Katelyn claims the court’s sanction of $1000 was insufficient and an abuse 

of discretion. She also claims the court acted improperly by allowing Kevin to 

offer exhibits and witnesses when he failed to comply with the trial scheduling 

order. 

To ensure our district courts have the tools to effectively manage pretrial 

and trial conduct, we have recognized the inherent power of the district court to 

impose sanctions. Fry v. Blauvelt, 818 N.W.2d 123, 130 (Iowa 2012); see also
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Iowa R. Civ. P. 1.602(5) (stating if a party fails to obey a scheduling or pretrial 

order, the court “may make such orders with regard thereto as are just”). 

Although district courts have discretion in deciding whether to enforce pretrial 

orders, “it is incumbent upon a reviewing court to scrutinize the exercise of that 

discretion and to confine the exercise to reasonable limits.” Fox v. Stanley J. 

How & Assocs., Inc., 309 N.W.2d 520, 522 (Iowa Ct. App. 1981).

Katelyn claims the district court’s decision to sanction Kevin $1000 

violated the language of Iowa Rule of Civil Procedure 1.602(5), which states a 

court “shall require the party or the attorney representing that party or both to pay 

the reasonable expenses incurred because of any noncompliance with this rule, 

including attorney’s fees, unless the court finds that the noncompliance was 

substantially justified or that other circumstances make an award of expenses 

unjust.” Katelyn notes, due to Kevin’s eleventh hour production of documents, 

her attorney had to enlist the help of an additional attorney at a total cost of 

$1912.00. Additionally, she complains her attorney incurred $4625 in costs 

preparing the weekend before trial. 

A trial scheduling order was entered on September 25, 2014, which set 

trial for November 10. The order required the parties to designate expert 

witnesses and complete discovery thirty days prior to trial, file and exchange 

witness and exhibit lists ten days prior to trial, and file and exchange current 

financial statements and stipulation of assets and liabilities ten days prior to trial. 

The document included a warning that a violation of the order may result in 

sanctions, including dismissal or a grant of relief at the request by the opposing 
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party. Kevin filed his witness and exhibit list on November 5; he filed an 

amended version on November 7 (Friday afternoon before trial). The morning of 

November 7, Katelyn filed her combined motion in limine, objection to Kevin’s 

witnesses and exhibits, and motion for sanctions. Katelyn requested the court 

impose sanctions by disallowing many of Kevin’s exhibits and witnesses. 

Katelyn did not request a continuance because “a continuance would essentially 

reward the Petitioner for his actions,” and prolong their child’s chaotic education 

schedule. 

We find the district court’s decision to sanction Kevin (and only Kevin) for 

$1000 was reasonable and tenable. The district court reasoned: “The court finds 

it appropriate to sanction [Kevin] for his well-documented failure to respond to

[Katelyn’s] discovery requests and abide by trial scheduling orders. [Kevin’s]

delays have caused [Katelyn] to incur significant additional attorney fees.” Given 

the considerable amount of discretion granted to the district court to sanction a 

party, and the considerable discretion we give the district court on appeal, we 

affirm the sanction. 

We find the district court did not abuse its discretion by allowing Kevin to 

offer his witnesses and exhibits. The purpose behind the disclosure 

requirements of the witness and exhibit lists is to assist the parties and the court 

in having an orderly trial free of surprises that can cause delay or even 

derailment. See Fry, 818 N.W.2d at 129–30. Pre-trial conferences and orders 

“contemplate trial, and are designed, not to prevent the presentation of a 

controversy to the court, but to expedite and simplify that presentation.” Iowa R. 
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Civ. P. 1.602(5) cmt. For this reason, “[e]xclusion of evidence is the most severe 

sanction available under the rule, and is justified only when prejudice would 

result. Exclusion should not be imposed lightly; other sanctions are available 

such as continuation of the trial or limitation of testimony.” Klein v. Chicago Cent. 

& Pacific R. Co., 596 N.W.2d 58, 61 (Iowa 1999). The most appropriate 

sanction, in this instance, would have been to continue the trial. As this was not 

requested, the “severe sanction” of excluding evidence was not warranted. The 

court allowed both parties to make statements concerning the untimely filings in 

the case. The court found there was nothing offered by Kevin “that should be a 

surprise to” Katelyn. We defer to the district court’s finding and decline Katelyn’s 

request to disregard the exhibits offered by Kevin. 

B. Modification

Katelyn claims she demonstrated a “substantial change in circumstances” 

not within the contemplation of the district court when it entered the decree, and 

she is the parent best suited to care for the child. 

The objective of physical care “is to place the children in the environment 

most likely to bring them to health, both physically and mentally, and to social 

maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). 

Changing physical care of children is one of the most significant modifications 

that can be undertaken. In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa 

Ct. App. 2000). The parent seeking to modify the physical care provision of a 

dissolution decree must prove “there has been a substantial change in 

circumstances since the time of the decree not contemplated by the court when 
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the decree was entered, which is more or less permanent and relates to the 

welfare of the child.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.

App. 2004). In addition, the parent seeking to modify physical care has a “heavy 

burden” and “must show the ability to offer superior care.” Id.; see also In re 

Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994) (stating “once 

custody of the children has been fixed, it should be disturbed only for the most 

cogent reasons”). The controlling consideration is the child’s best interest. In re 

Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007).

Katelyn contends the evidence supporting her modification claim includes: 

the fact she has served as the “de facto” primary care giver to the child, the 

parties’ inability to communicate, and the negative effect the frequent transitions 

between the parents has on the child.

Upon our de novo review of the record, we conclude Katelyn failed to 

prove a substantial change in circumstances. While it is clear that some changes 

have occurred, those changes were contemplated at the time the decree was 

entered, or are insufficient to merit modifying the decree. The district court’s 

order provides a good analysis of the situation: 

A.J. has been attending two different kindergartens since school 

began this year, Madrid on Katelyn’s days and Western Hills on 

Kevin’s days. Kevin, Katelyn, and their current spouses all agreed 

that attending two different schools has been detrimental to A.J.

Although she is apparently doing well academically at both schools 

so far, they testified that the frequent changes are causing A.J. 

confusion, anxiety, and frequent need for reassurance and 

explanation about her schedule. While the fact that A.J. began 

kindergarten could be considered a “change in the educational 

needs of the minor child,” it was obviously anticipated that she 

would begin school at some point when the decree was entered. 

The court agrees that one school needs to be determined for A.J., 
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but does not find that fact that she has reached the age to start 

school enough to warrant a change in custody.

Katelyn’s claim that Kevin has had a change in his mental or 

emotional health to the point that it would warrant a change in 

custody simply is not supported by the evidence. She portrayed 

him as controlling, but text messages admitted into evidence show 

that they were able to communicate civilly and work out most 

issues concerning A.J. Katelyn claimed she felt bullied by Kevin, 

but she never sought the assistance of a parenting coordinator to 

help her resolve any issues. She presented evidence consisting of

Facebook photos to support her claim that Kevin has a drinking 

problem. Kevin testified that the events depicted in the photos 

were his bachelor party, a New Year’s Eve party, a wedding party, 

and his birthday party. He has never been arrested for any drug or 

alcohol related issues, nor was evidence presented that it has been 

suggested that he undergo substance abuse or mental health 

treatment. There was no meaningful evidence presented to 

indicate that Kevin has any concerning mental, emotional, or

substance related issues.

Kevin and Katelyn are both very involved parents. They 

both take her to doctor’s appointments and dental appointments. 

They both participate in her school activities. Both families are 

involved in church and other extracurricular activities with A.J.

They both arrange their own child care for A.J. (the court notes that 

the original decree provides that each parent may select their own 

daycare provider). A.J. is very fortunate to have two loving and 

involved parents and extended families who are obviously 

concerned about her long-term well-being.

The court is unable to find that Katelyn is more able to 

minister to A.J.’s well-being than Kevin is. If anything, the court has 

some concern for Katelyn’s apparent lack of insight into A.J.’s need 

for stability in her early years. Besides frequent residential moves, 

Katelyn has changed A.J.’s childcare providers at least nine 

different times with six different providers in the last three years. 

When asked if the frequent changes were negatively impacting her 

daughter, Katelyn didn’t think so, since A.J. is with different people 

every day. She testified that she thinks A.J. has stability because 

she has a roof over her head. And while she said she believes

daycare providers are important people in a child’s development, 

she also believes that frequent changes are “not a big deal” for a 

child.

We affirm the district court’s denial of Katelyn’s modification petition. 
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C. Child Support

Katelyn claims the district court failed to consider Kevin’s overtime hours 

in determining his child support obligation. The district court noted: “Kevin’s 

annual salary is $41,787.20. Any income over that is due to overtime. Kevin’s 

pay stubs . . . show that Kevin does not regularly and routinely work overtime.”

Overtime wages are not excluded as income. In re Marriage of Brown,

487 N.W.2d 331, 333 (Iowa 1992). Overtime wages are within the definition of 

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

purposes. Id. This conclusion does not necessarily mean, however, that a court 

must steadfastly adhere to the appropriate child support amount as determined 

by the guidelines using overtime pay if the amount results in injustice between 

the parties. Id. 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.; see also In re Marriage of Close, 478 N.W.2d 852, 854 (Iowa

Ct. App. 1991). Yet a parent’s child support obligation should not be so 

burdensome that the parent is required to work overtime to satisfy it. In re 

Marriage of Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005). 

However, the district court must make a specific finding to that effect. Id.

Upon our de novo review of the record, we agree with the district court 

Kevin’s overtime wages are “uncertain or speculative,” and it would it would be 

unjust to include the overtime wages in the calculation of Kevin’s child support 

obligation. We affirm. 
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D. Appellate Attorney Fees 

Katelyn requests an award of appellate attorney fees. An award of 

appellate attorney fees is not a matter of right but rests within our discretion. In 

re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). In 

determining whether to award appellate 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 decision of the trial 

court on appeal. Id. Given the circumstances in this action, we decline to award 

Katelyn appellate attorney fees. 

IV. CONCLUSION

We find the district court did not abuse its discretion by sanctioning Kevin 

$1000. Further, Katelyn has failed to carry her heavy burden in demonstrating a 

substantial change in circumstances to merit modifying the original decree. The 

district court properly excluded Kevin’s overtime wages in calculating his child 

support obligation. Finally, we decline Katelyn’s request for appellate attorney 

fees. 

AFFIRMED.