IN THE COURT OF APPEALS OF IOWA

No. 13-1884

Filed October 29, 2014

IN RE THE MARRIAGE OF MATTHEW MORRIS

AND ALLISON MORRIS

Upon the Petition of

MATTHEW MORRIS,

Petitioner-Appellee,

And Concerning

ALLISON MORRIS, n/k/a ALLISON WALSH,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Lee (North) County, John G. Linn, 

Judge.

Allison Morris, now known as Allison Walsh, appeals the physical care, 

child support, and property distribution provisions of the decree dissolving her 

marriage to Matthew Morris. AFFIRMED.

Stephen T. Fieweger of Katz, Huntoon & Fieweger, P.C., Moline, Illinois, 

for appellant.

Daniel L. Bray, Lori L. Klockau, Chad A. Kepros, and David M. Cox of 

Bray & Klockau, P.L.C. , Iowa City, for appellee.

Heard by Danilson, C.J., and Doyle and Tabor, JJ.
2

DANILSON, C.J.

Allison Morris, now known as Allison Walsh, appeals the physical care, 

child support, and property distribution provisions of the decree dissolving her 

marriage to Matthew Morris. She first contends the district court erred in placing 

the parties’ two children in Matthew’s physical care. Allison also maintains the 

court erred in denying her request to reopen the record to present additional 

evidence. She challenges the court’s valuation of the marital residence, its 

failure to require Matthew to refinance the debt on the house, and its calculation

of her child support obligation. Upon our de novo review, we affirm.

I. Background Facts and Proceedings.

Matthew and Allison were married in August 2001. Both were twenty-six 

years old at that time. It was the first marriage for both parties. They had two 

children, a son, J.M., born in January 2004, and another son, H.M., born in 

September 2005.

Matthew is in good health and has no physical limitations. Matthew grew 

up in Fort Madison. He attended college after graduating from high school; 

worked at a bank in Florida in 1997; and moved to Cincinnati, Ohio, where he 

worked for two years. Matthew later lived in Coralville, Iowa, and worked for 

Brenton Bank and then Wells Fargo as a mortgage agent. After the parties 

married in 2001, they moved to Des Moines while Allison worked on her 

certification to be a physician’s assistant (PA). Matthew continued to work as a 

mortgage agent for Wells Fargo. The parties moved to Fort Madison in 2002

where Matthew began his employment with the Fort Madison Bank & Trust. 

Matthew was promoted to bank president in 2006. In 2011, Matthew’s gross 
3

annual income was $179,777, about $150,000 of which is salary, the remainder 

being benefits and a bonus. He has an employer-sponsored health benefit plan

available; the monthly cost to cover the children for medical and dental insurance 

is $599.

Allison finished her undergraduate degree requirements in southeast Iowa 

and earned a Bachelor of Science in 1998. In 2003, Allison became a PA. In 

August 2003, she went to work as a PA at Fort Madison Physicians & Surgeons 

and was employed there until October 2004. She then worked at Infinity Medical 

Clinic in Fort Madison until December 2007, when the clinic closed. Allison 

returned to Fort Madison Physicians & Surgeons in January 2008. However, 

Allison resigned in March 2010. At that time, she was covered by a two-year, 

sixty-mile-radius, non-compete clause that prohibited her from working as a PA in 

the Fort Madison area. From May 2010 to January of 2011, Allison worked in

sales for Tri-Medical Solution.

In 2010, Allison began experiencing severe emotional problems.1 In 

November 2010, Allison began outpatient counseling with Dr. Janeta Tansey. 

Her condition became severe enough that for ten days during January 2011 she 

entered an inpatient program at Mercy Hospital in Iowa City. Allison was 

diagnosed with anorexia nervosa and post-traumatic stress disorder (PTSD). 

After leaving Mercy, Allison’s condition worsened, and she began inpatient 

treatment at the University of Iowa Hospitals from February 2 through 21, 2011. 

She left that program against medical advice. Her physical health worsened in 

 

1 Allison had some history of emotional issues, including an undiagnosed eating disorder

and a suicide attempt during her teenage years and an episode of suicidal ideation when 

in college.
4

late February. Allison entered a long-term inpatient program at a Denver, 

Colorado, hospital in March 2011. Allison stated she completed the program; 

Matthew felt she had not because she had not filled out her wellness plan prior to 

discharge. She returned home to Fort Madison in mid-May 2011.

Still covered by the non-compete agreement, Allison began working in 

September 2011 at the University of Iowa Community Medical Services office in 

Coralville, Iowa. She worked approximately three ten-hour days per week and 

was paid forty dollars per hour. Allison would spend one or two nights per week 

in Coralville, staying at a motel or with relatives. 

Before her hospitalizations, Matthew and Allison were both actively 

involved in the children’s care. Matthew became the boys’ sole caregiver for 

several months in early 2011. Upon Allison’s return, both parents again provided 

care for the children, although Matthew was necessarily the primary caregiver 

when Allison was at work in Coralville.

Matthew filed a dissolution petition in March 2012. Following several 

motions and orders related to the temporary care and support of the children 

(including Matthew’s request for a temporary injunction to prohibit Allison from 

moving the boys from Fort Madison and enrolling them in school in Iowa City),2

the court sua sponte appointed a guardian ad litem (GAL) for the children. After 

an extensive investigation, the GAL recommended the children remain enrolled 

in their Fort Madison school.

 

2 After the parties separated, they alternated living in the marital residence for one-week 

periods caring for the children. In July 2012, Allison’s parents purchased a residence for 

Allison in the Coralville area. 
5

On August 9, 2012, the district court entered a ruling granting Matthew’s 

application for a temporary injunction prohibiting Allison from registering the 

children for school at an elementary school in Coralville. To provide a “modicum 

of stability” for the children, the court enjoined the parties from removing the 

children from their current school system until further order of the court.

On September 5, 2012, the GAL filed a supplemental report in which she 

noted the children were “very bonded to both of their parents and are comfortable 

in both of their homes. Both parties love these boys very much, but are having a 

difficult time shielding the children from the divorce process as emotions are 

running on overdrive during this time.” The GAL recommended the court order 

temporary physical care of the children with Matthew:

Taking all things into consideration, I believe the most 

important factor to look at is the continuity and routine of the boys. 

It is a fact that the boys like their home in Fort Madison and the 

boys are comfortable there. They have many friends and a huge 

support system in the Fort Madison area to include both Matt and 

Allison’s families. The boys have attended and been involved with 

the Holy Trinity School system since they were [two] years old. 

Fort Madison is where they have grown up so far. Many of the 

people who are the closest with the boys all voiced concerns they 

will not be happy on a long term basis in Iowa City away from their 

friends and family.

On September 10, 2012, the court entered an order on temporary matters. 

The court noted the parties had initially shared care of the children, but that 

arrangement was no longer possible. The court concluded:

Children the ages of [J.M.] and [H.M.] suffer a substantial amount of 

disruption in their lives when their family unit is dissolved when their 

parents separate. Such disruption and substantial change typically 

has a negative impact on children. In this case the parties report 

that both [children] are suffering emotionally because of the 

changes in their family structure. Consequently, the court should 

do nothing in its order on temporary matters that will exacerbate the 
6

stresses the children are enduring at this time. The court 

concludes that leaving the children in the home where they have 

lived their entire lives and in the community where they have lived 

their entire lives is the least disruptive thing the court can do to 

them at this stage of the proceeding.

The children were placed in Matthew’s physical care, and Allison was granted 

“reasonable and liberal visitation.” Allison was ordered to pay temporary child 

support in the amount of $145.57 per week.

On January 5, 2013, the GAL filed a report with the court, which was 

admitted at trial. Though extensive and detailed, the report can be summed up, 

Taking all the drama and noise out of the equation, both parents 

are perfectly capable of caring for these boys. Maintaining their 

routine and way of life is what I believe we must look to.

. . . .

. . . [T]hese boys need consistency and routine and I believe 

they are best able to achieve that during the school year in Fort 

Madison. I further believe that because the children are so bonded 

to both of their parents, that they should be spending a significant 

amount of time with both parents.

The GAL thus recommended physical care remain in Fort Madison during the 

school year with Matthew and that the boys “spend the summer with Allison.” 

The GAL recommended the parent not providing physical care receive liberal 

visitation to maximize the children’s time with each parent. The GAL further 

recommended family counseling for the “entire family” so “both parties can do a 

better job of putting the boys’ interests ahead of their own.” 

A lengthy dissolution trial was held on January 7, 8, and 25; February 19;

May 17; and June 6, 2013. An order establishing summer vacation was filed on 

June 11, 2013. Allison’s motion to reopen the record filed on June 27 was 

denied.
7

On October 1, 2013, the court entered a dissolution decree placing the 

children in Matthew’s physical care. The court stated, “The children’s placement 

in the Fort Madison area provides them the most family support and this 

placement will be the least disruptive to their mental and emotional growth. 

Placing the children with Matthew will most likely bring them to healthy physical, 

mental, and social maturity.” 

The district court found Allison earned $62,400 working three, ten-hour 

shifts per week. The court concluded Allison should be attributed an earning 

capacity of $70,000 and ordered Allison to pay $222 per week in child support. 

The court awarded Matthew the marital residence, which was encumbered 

by a first mortgage in the amount of $409,420 and a second mortgage in the 

amount of $116,192. Though noting the replacement cost of the house 

exceeded $690,000, the court observed the real estate appraisals ranged from 

$402,000 to $665,000. The court assigned a value of $520,000 to the residence. 

The court assigned the first and second mortgage debt to Matthew and ordered 

Allison be “saved harmless” on the debt. Under the decree, Matthew was to

receive assets with a net value of $174,336 and Allison was to receive assets 

with a net value of $43,953. The court ordered Matthew to transfer $65,000 from 

his 401(k) account to Allison by Qualified Domestic Relations Order (QDRO).

On October 9, Allison filed a motion for new trial in which she asked the 

court to take additional evidence concerning post-trial events. She also asked 

the court to amend the decree to require Matthew to refinance the first and 

second mortgages on the marital residence to remove her name. The court 

denied the post-trial motions, and Allison appeals.
8

Allison argues she should have been granted physical care of the children. 

She further contends the court erred in failing to reopen the record to allow her to 

present further evidence, asserting the information had to do with Matthew’s 

moral character. Allison challenges the court’s valuation of the marital residence. 

She contends the court erred in failing to require Matthew to refinance the 

mortgages to remove her name and in calculating her child support based upon 

imputed income instead of her actual income.

II. Scope and Standard of Review.

We review dissolution cases de novo. In re Marriage of Sullins, 715 

N.W.2d 242, 247 (Iowa 2006). We give weight to the district court’s findings, 

especially regarding the credibility of witnesses, but are not bound by them. Iowa 

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must 

depend on the facts of the particular case.” In re Marriage of White, 537 N.W.2d 

744, 746 (Iowa 1995).

We review the trial court’s decision whether to reopen the record for an 

abuse of discretion. Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621, 

634 (Iowa 1996). 

III. Discussion.

A. Physical Care. In any custody determination, the primary 

consideration is the best interests of the children. See Iowa Code § 598.41(a) 

(2011);

3

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

 

3 Section 598.41(a) provides:

The court may provide for joint custody of the child by the parties. 

The court, insofar as is reasonable and in the best interest of the child, 

shall order the custody award, including liberal visitation rights where 
9

Physical care issues are not to be resolved based upon perceived 

fairness to the spouses, but primarily upon what is best for the 

child. The objective of a physical care determination is to place the 

children in the environment most likely to bring them to health, both 

physically and mentally, and to social maturity.

Hansen, 733 N.W.2d at 695. We consider numerous factors, including but not 

limited to the suitability of parents, whether the psychological and emotional 

needs and development of the children will suffer from lack of contact with and 

attention from both parents, the quality of parental communication, the previous 

pattern of caregiving by the parents, and each parent’s support of the other. See

id.

In assessing a custody order, we give considerable weight to the judgment 

of the district court, which had the benefit of hearing and observing the parties 

firsthand. In re Marriage of Ford, 563 N.W.2d 629, 630-31 (Iowa 1997). We 

have carefully reviewed all the evidence and the district court’s rulings. The 

district court noted each party’s positive parental qualities:

The children are closely bonded to Matthew and enjoy the stability 

and continuity of being able to reside in the marital residence, the 

home they have lived in since it was reconstructed after the fire. In 

Matthew’s physical care, the children can continue to attend Holy 

Trinity School. The children enjoy Holy Trinity and have many 

friends there. Matthew holds a responsible position with a local 

bank, earns a significant income, and can provide for the material 

needs of the children. Matthew is even-tempered and patient with 

the children. Moreover, he can provide for their emotional needs. 

Matthew perceived a need for the children to undergo counseling 

due to the high level of conflict between the parents. Matthew

 

appropriate, which will 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.

(Emphasis added.)
10

encourages the children to be involved in outside activities such as 

baseball, football and golf. Matthew works closely with school 

officials and attends school functions for the children. When 

Matthew is at work or a meeting, and cannot take care of the 

children, he has access to responsible individuals for child care. 

Often, Matthew’s mother will provide child care to the children. She 

lives nearby and has a close, loving relationship with the children. 

Allison’s parents (the children’s maternal grandparents) and the 

children’s cousins all live in Burlington, which is approximately 

[twenty] miles away. Matthew encourages and promotes the 

relationship between the children and their other relatives. Matthew 

has attended to all of the children’s medical and dental needs. He 

has scheduled appointments and made arrangements for this care.

. . . .

. . . Allison enjoys a close and loving relationship with the 

children. Even though she has not had primary physical care the 

past year, she has maintained a close relationship with the children, 

exercises all of her visitation, and speaks to the children by 

telephone daily. Allison lives in a comfortable residence in a good 

neighborhood in Coralville. The children’s educational needs would 

be well met by the school they would attend if they resided in 

Coralville. Allison has made plans for appropriate child care if she 

were awarded physical care. Allison holds a responsible position 

as a physician’s assistant and earns an adequate income, so she 

could provide for the children’s material needs. Allison has paid all 

court-ordered child support. Allison enjoys outdoor activities, as 

does [J.M.] She takes the children on walks in the woods, rides 

with them on ATVs, and takes [J.M.] hunting. When her schedule

permits, Allison takes the children to the home of her parents in 

Burlington. Allison’s parents enjoy a close, loving relationship with 

the children. Allison has tried hard to stay in touch with the 

children’s teachers, school officials, and she has tried to attend

activities the children are involved with in school. Allison has 

participated in decisions made for the children’s medical and dental 

care.

The trial court also acknowledged both parents’ extensive criticisms of the other, 

which we find no reason to repeat here.

The trial court concluded, and we agree, “The children have enjoyed a 

great deal of stability in Matthew’s physical care.” The trial court wrote:

The Court does not doubt the sincerity of Allison’s desire that 

the children live with her in Coralville, but in determining the award 

of physical care, it is the best interests of the children which must 
11

guide the Court, not the interest of the parent seeking physical 

care. Uprooting these young children from their familiar 

surroundings in Fort Madison would be difficult, unsettling, and 

traumatic. The children have already had to endure the separation 

of their parents. It would be cruel to require them to leave the 

home in which they have resided all of their lives, their 

neighborhood, school, friends, relatives, and community. 

Moreover, Matthew has been the children’s past joint caretaker, 

sometimes their sole caretaker, and for at least two of the previous 

three years, their primary caretaker. The children should not be 

forced to be separated from him. Allison is a fit parent, but she has 

a history of emotional problems. She becomes frustrated with the 

children, sometimes yells at them, and has used inappropriate

discipline. She is able to take care of the children for short periods 

of time, but simply does not have the emotional endurance to act as 

the children’s primary caretaker over the long haul. . . .

The Court concludes placement of physical care of the 

children with Matthew is in their best interests because Matthew 

can minister more effectively to their present and future needs. The 

children’s placement with Matthew in the Fort Madison area

provides them the most family support and this placement will be 

the least disruptive to their mental and emotional growth. Placing 

the children with Matthew will most likely bring them to healthy 

physical, mental, and social maturity. The Court concludes

Matthew shall be awarded physical care of [the children]. Allison 

shall be awarded visitation.

On appeal, Allison expends considerable time and emotional energy 

focusing on several points she feels should tip the scales in favor of her having 

physical care of the children. First, she argues her move to Coralville should not 

be held against her because she did not “choose” to move away, but rather was 

required to go where work was available (and not prohibited by the non-compete 

clause) when she was “kicked out of the house.” She notes she only works three 

days per week so has more time to be available to the children. She next points 

out several instances of Matthew’s conduct she argues establish his bad moral 

character. She also maintains the trial court overlooked or ignored “virtually all of 

Matthew’s egregious acts and deficiencies.” 
12

Upon our de novo review, and given the objective of a physical care 

determination—to place the children in the environment most likely to bring them 

to healthy physical, mental, and social maturity—we believe the stability offered 

by Matthew, coupled with the children’s close relationships with the extended 

family in Fort Madison, tip the scales in favor of placing the children in Matthew’s 

physical care. The district court also gave additional sound and ample reasons

for the physical care award, which are supported by the record. We do not 

criticize Allison for her move to Iowa City for employment purposes, but the noncompete clause terminated shortly after the dissolution action was filed. 

Notwithstanding, she chose to stay in Iowa City even though the children appear 

to be flourishing and grounded in Fort Madison. 

Both parents obviously love their children and are capable parents, but 

like any parent they have their strengths and weaknesses. Both parties have 

exhibited less than perfect conduct during these extended dissolution 

proceedings. The children will benefit if the parties can get beyond their personal 

grievances with one another, protect their children from their own animosity 

toward the other, and focus on their children’s needs and healthy development. 

B. Reopening Record. The sixth day of trial was held on June 6, 2013.

Matthew was questioned about his relationship with his girlfriend on that date. 

On June 27, Allison filed a motion to reopen the evidence on the ground Matthew 

was now having his girlfriend “regularly stay overnight” while the children were 

present in his residence. The trial court denied the motion, finding it had “ample 

evidence from which to make a decision on the contested issues presented.” 
13

The trial court has broad discretion in deciding whether to reopen a case 

for the reception of additional evidence. See Bangs v. Maple Hill, Ltd., 585 

N.W.2d 262, 267 (Iowa 1998) (noting “a trial court in its discretion may allow 

reopening of the case at any stage of the trial”); Sun Valley Iowa Lakes Ass’n,

551 N.W.2d at 634. We acknowledge the district court did not have the benefit of 

trial testimony from Matthew’s girlfriend, and her absence is somewhat 

disconcerting in light of her presence in Matthew’s life. But we note the GAL’s 

concern did not relate to the girlfriend’s character or her relationship with the 

children. Notwithstanding, given the extended nature of these proceedings and 

the extensive record already before the trial court, we find no abuse of discretion 

here. 

C. Property Valuation. Allison argues the trial court erred in valuing the 

marital residence. This residence was built after the parties’ house burned in 

2007 and was a total loss. Both parties testified the other overspent in rebuilding 

and furnishing the home—as the trial court found, the replacement case for the 

current home “probably exceeds $690,000.” One real estate appraiser, Tammy 

Luckenbill, provided a valuation of the house at $595,000. However, she testified 

there were no comparable sales to use to establish a market value because the 

highest sale price for a house in the Fort Madison area in the “last few years”

was $395,000. Another appraiser, Margaret Coleman, valued the house at 

$402,000. Other evidence established Matthew had refinanced the house in 

August 2011 based upon a valuation of $683,400.

As was stated in Hansen, 733 N.W.2d at 703, “Ordinarily, a trial court’s 

valuation will not be disturbed when it is within the range of permissible 
14

evidence.” Upon our de novo review of the various valuations and supporting 

testimony, we conclude the trial court’s valuation is within the range of 

permissible evidence and should not be disturbed. In her appellate brief, Allison 

“concedes, as her own appraiser recognized, that the current housing market in 

the Fort Madison area may not reflect a valuation that matches the cost of this 

home.” 

D. Hold Harmless. The decree awarded Matthew the martial residence 

and ordered him to pay the debts thereon (the first mortgage in the amount of 

$409,420; the second mortgage in the amount of $116,192). The decree states, 

“Allison will be saved harmless.” 

Matthew twice testified he would hold Allison harmless, though he also 

testified he was not sure if he would be able to refinance the property. On the 

final day of trial, the following occurred:

[ATTORNEY BRAY] Q. What is the current mortgage on the 

house? [MATTHEW] A. Current right now combined, about 524, I 

think.

Q. Should there be a refinancing ordered by the Court, are 

you capable of doing that financing at this time? A. I’m not sure 

yet. It—Because of the market and the sales, I’m not sure if I’ll be 

able to get it refinanced.

Q. If you’re unable to obtain refinancing, are you willing to 

hold Allison harmless from the debt on the house? A. Yes.

Allison contends the trial court erred in not requiring Matthew to refinance 

the house to remove her name. We find no reason to modify the decree. Allison 

presented no evidence that her credit standing or ability to obtain financing would 

be affected other than her own opinion. 

In light of the debt owed against the home, the trial court could have

determined that requiring refinancing was not reasonable under the housing 
15

market conditions and that Allison was adequately protected by the decree’s 

“hold harmless” provision. Cf. In re Marriage of Ginsberg, 750 N.W.2d 520, 522 

(Iowa 2008) (finding former spouse was permitted to seek enforcement of a 

dissolution decree’s “hold harmless” provision in a later proceeding). 

E. Child Support. Allison next argues the court erred in calculating her 

child support obligation. She maintains the trial court did not make the necessary 

finding to base her child support obligation on earning capacity rather than actual 

earnings. 

“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 9.11 provides: 

The court shall not vary from the amount of child support 

which would result from application of the guidelines without a 

written finding that the guidelines would be unjust or inappropriate 

as determined under the following criteria:

(1) Substantial injustice would result to the payor, payee, or 

child(ren).

(2) Adjustments are necessary to provide for the needs of 

the child(ren) and to do justice between the parties, payor, or payee 

under the special circumstances of the case. . . . 

Pursuant to Iowa Court Rule 9.11(4), 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 
16

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) (emphasis added). The required findings highlighted are 

separated by the term “or”—the three alternative findings are used in the 

disjunctive. See Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 346 (Iowa 1991) 

(“[W]hen the word ‘or’ is used in a statute, it is presumed to be disjunctive unless 

a contrary intent appears.”), abrogated on other grounds by Thompson v. 

Kaczinski, 774 N.W.2d 829, 836 (Iowa 2009).

Here, Allison testified she could make $83,200 per year if she worked fulltime in her present position. However, she maintained a thirty-hour-work week, 

which allowed her flexibility and more time to be available for her children. When 

asked if she could be a full-time employee, Allison testified, “Yes and no.” “Yes, I 

could. But, no, I need to make sure that I have instilled Wednesdays off for 

visitations with my children and that I—only one weekend day a month.” She 

acknowledged she had worked extra shifts to cover when someone else was ill.

The district court noted Allison’s gross annual income working three tenhour days per week was $62,400. The court also found, “Allison’s tax return 

showed gross annual income of $65,000 for 2012. Based on a recent check stub 

for which Allison worked 67.52 hours during a two-week pay period, Allison 

would earn, on an annualized basis, $70,220 per year.” The court concluded, 

Allison should be attributed earning capacity of $70,000 per year. 

This conclusion is justified under the special facts of this case to 

avoid substantial injustice to Allison [sic], and such adjustment is 

necessary to do justice between the parties and the children. This 

figure takes into account Allison’s educational background, her 

emotional and physical condition, and her earning history over the 

past five years. See Iowa Child Support Guideline Rule 9.11(1) 
17

and (2). See also In re Marriage of Salmon, 519 N.W.2d 94, 97 

(Iowa Ct. App. 1994). Therefore, for the purpose of calculating 

Allison’s child support obligation, Matthew earns gross annual

income of $179,777 and Allison earns gross annual income, based 

on earning capacity, of $70,000.

The district court found that it used Allison’s earning capacity because it “is 

necessary to do justice between the parties.” Although we could conclude the 

court’s finding related to Allison’s earning capacity is supported by the record and 

its written finding is sufficient to vary from the child support guidelines under 

rule 9.11(4), there was also evidentiary support to conclude her current income is 

$70,000. The court found that based upon Allison’s latest pay stub, and by 

extrapolating that sum for the whole year, Allison earned in excess of $70,000 

gross income. Thus, even disregarding the district court’s usage of earning 

capacity, we conclude the child support was properly calculated based upon 

Allison having gross annual income of $70,000.

Upon our de novo review, we affirm the dissolution decree in its entirety.

IV. Appellate Attorney Fees.

Matthew seeks an award of appellate attorney fees. Appellate attorney 

fees are not a matter of right, but rest in the court’s discretion. In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “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 Geil, 509 N.W.2d 738, 743 (Iowa 1993). In light of 

Matthew’s significantly greater income, we determine each party shall pay his or 

her own attorney fees. 
18

V. Conclusion.

We affirm the placement of the parties’ two children in Matthew’s physical 

care. Given the extended nature of these proceedings and the extensive record 

already before the trial court, we find no abuse of discretion here in the court’s 

denial of Allison’s request to reopen the record. The court’s valuation of the 

marital residence is within the range of permissible evidence and will not be 

disturbed. Nor do we require Matthew to refinance the debt on the house—in 

light of the debt owed against the home, the trial court could have determined 

that requiring refinancing was not reasonable under the housing market 

conditions and that Allison was adequately protected by the decree’s “hold 

harmless” provision. Finally, we conclude the child support was properly 

calculated based upon Allison having gross annual income of $70,000. We 

award no appellate attorney fees. 

Costs on appeal are assessed to Allison.

AFFIRMED.