Marriage of Gulsvig, In re

• Decision Date: 21 April 1993
• Docket Number: No. 92-607,92-607
• Parties: In re the MARRIAGE OF Rhonda Lynn GULSVIG and Ronald Gerald Gulsvig. Upon the Petition of Rhonda Lynn Gulsvig, Appellee, And Concerning Ronald Gerald Gulsvig, Appellant.
• Court: Iowa Supreme Court

Page 725

498 N.W.2d 725

In re the MARRIAGE OF Rhonda Lynn GULSVIG and Ronald Gerald Gulsvig Upon the Petition of Rhonda Lynn Gulsvig, Appellee And Concerning Ronald Gerald Gulsvig, Appellant.

No. 92-607.

Supreme Court of Iowa.

April 21, 1993.

As Corrected on Denial of Rehearing June 11, 1993.

Eric Borseth, Pleasant Hill, for appellant.

Rhonda Lynn Acosta, pro se.

Considered en banc.

SCHULTZ, Justice.

This is an appeal from a district court's decree dissolving the marriage of Rhonda Lynn Gulsvig and Ronald Gerald Gulsvig. In a nunc pro tunc order, Rhonda's surname was changed to Acosta. Prior to the decree, a child was born to the parties. Acting alone, Rhonda had the name James Joseph Acosta entered on the child's birth certificate. The trial court awarded joint custody of James to the parties but gave Rhonda primary physical care of the child. On appeal, Ronald challenges the provision for visitation, the amount of child support, and the refusal of the trial court to change the child's surname to Gulsvig. We affirm the decree dissolving the marriage, but modify the terms of the decree.

The parties had lived together since February 1990 and were married on January 5, 1991. They separated in April 1991 and a trial on the Dissolution of Marriage Petition was held in September 1991.

Ronald, age twenty-five at the time of trial, is a high school graduate and a navy veteran. He resides with his mother and has primary physical care of his four-year-old daughter from an earlier marriage. Ronald is employed as a manager of a convenience store.

Rhonda, age twenty-six at the time of trial, is a high school graduate. She finished vocational-technical schooling to become a licensed-practical nurse and is employed in that field. Rhonda also has custody of another child from a previous marriage. We will discuss other pertinent facts as we address each issue.

I. Visitation. The trial court ordered that Ronald shall have visitation with James on alternating Saturdays and Sundays from 1:00 p.m. until 5:30 p.m. until James is eighteen-months old. At that time, Ronald is entitled to visitation every other week-end from 1:00 p.m. on Saturday until 5:30 p.m. the next day. When James becomes three years of age, Ronald is entitled to an additional one week summer visitation; at age five, summer visitation is increased to four weeks.

Ronald urges that this visitation is too limited and more restrictive than Rhonda originally requested. He requests immediate overnight visitation rights, mid-week visitation, alternating holidays, and two to four weeks visitation during the summer.

In our de novo review, we find that almost all of the suggestions set out in Rhonda's brief regarding visitation are in the best interest of the child. We order that Ronald may have visitation with his son as follows:

1. Every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday.

2. Alternating holidays which shall include New Years, Easter, Memorial Day, Fourth of July, Labor Day Thanksgiving, and Christmas. All holidays will be defined to begin at 6:00 p.m. on the eve of the holiday and end at 6 p.m. on the holiday, with the exception of Christmas.

Christmas shall be shared by both parents on an alternating basis. Ronald's visitation shall begin at 9:00 a.m. to 4:00 p.m. on Christmas Day one year, and begin at 4:00 p.m. on Christmas Eve and end at 9:00 a.m. on Christmas Day the alternate year.

Additionally, the child will be with Ronald every Father's Day from 9:00 a.m. to 8:00 p.m., and be with Rhonda every Mother's Day, regardless of the previous provision.

3. Ronald shall have a two-week summer visitation with the child when he becomes two years of age, and a four-week summer visitation when the child becomes five years of age, subject to the provision that the visitation should not exceed a two-week period at any time.

Ronald shall give notification of his planned summer visitation by May 1st of each year.

We reject Ronald's suggestion that he should have midweek visitation rights and be given the first option to babysit for James. This does not prevent the parties from agreeing to make these arrangements; however, only Rhonda should instigate discussion on the subject.

II. Amount of support. The trial court set Ronald's child support at $47 per week. Rhonda provides James' health insurance. The parties do not dispute that Rhonda's income after taxes is $1,082 and Ronald's income after taxes is $909 per month. The court used the child support guidelines for one child, amounting to 22.5 percent of Ronald's income, to arrive at the support award.

Ronald urges that the trial court failed to account for his support obligation to his daughter. ¹ He receives no assistance in support for her. He maintains that his income should be reduced by the amount that he would be required to pay for his daughter if she were in her mother's custody. Ronald's argument runs contrary to our "child support guidelines." The guidelines allow a deduction from gross income for "child support ... actually paid pursuant to court or administrative order" Supreme Court Order in the Matter of Child's Support Guidelines (September 29, 1989). This is not to say that the trial court could not consider Ronald's expenses for the support of the child within his custody. Those expenses are germane in determining his financial ability to pay, Gilley v. McCarthy, 469 N.W.2d 666, 668 (Iowa 1991), and may justify deviation from the support as determined by the guidelines.

In our de novo review, we cannot find special circumstances that would justify a deviation from the guideline amount. The court file, provided on appeal, does not contain a financial statement prepared by Ronald showing his personal expenses. Neither do we find such information in the testimony. Our guidelines create a rebuttable presumption that the amount of child support resulting from the application of the guidelines is the correct amount of child support to be awarded. Id. Ronald has failed to present evidence of any special circumstances which would rebut this presumption. We affirm the child support award.

III. Name of the child. Ronald challenges the trial court's ruling denying his request to change James' surname to Gulsvig. After an evidentiary hearing, the trial court's only finding was "[t]he child will probably spend the bulk of his time with the custodial parent and be involved in family situations with the petitioner [Rhonda]." The court then concluded it would be in the best interest of the child to maintain the surname of Acosta.

We first determine whether the trial court is authorized to change the name of a child in a dissolution action. In recent years, we have decided several instances involving subject matter jurisdiction in dissolution cases. Iowa Code chapter 674 (1991) ² provides authority and direction in changing the names of adults and minors. Where other Iowa Code chapters provide exclusive jurisdiction, we have held the dissolution court lacks subject matter jurisdiction to enter orders involving the other remedy. In re Marriage of Carrico, 284 N.W.2d 251, 255 (Iowa 1979) (dissolution court may not direct Department of Social Services (DSS) to terminate parental rights); In re Marriage of Snyder, 276 N.W.2d 402, 406 (Iowa 1979) (dissolution court could not find child to be in need of assistance within meaning of Iowa Code section 232.61(1) (1979)).

We have also held the dissolution court lacked subject matter jurisdiction to expand authority of an administrative agency beyond that established by statute. Iowa Dep't of Social Serv. v. Blair, 294 N.W.2d 567, 570 (Iowa 1980) (dissolution court may not order DSS to maintain involuntary protective supervision over minor children of the parties); accord, In re Marriage of Corbin, 320 N.W.2d 539, 542 (Iowa 1982) (dissolution court has authority to place temporary custody with DSS where DSS has consented to its custody and supervision). However, these cases are not dispositive because chapter 674 does not specify that its remedy is exclusive and does not involve an administrative agency.

Other jurisdictions have addressed the issue of whether a dissolution court has authority to change the name of a child. Nebraska has a statute that gives its courts authority "to include such orders in relation to any minor children and their maintenance as shall be justified...." Relying on this statute and its equity jurisdiction, it held it had authority to change a child's surname in a dissolution action. Cohee v. Cohee, 210 Neb. 855, 317 N.W.2d 381, 384 (1982). See also In re Marriage of Presson, 102 Ill.2d 303, 80 Ill.Dec. 294, 296, 465 N.E.2d 85, 87 (1984) (child's name is a matter incident to custody of child and divorce court has subject matter jurisdiction); In re Marriage of Nguyen, 684 P.2d 258, 260 (Colo.Ct.App.1983), cert. denied, 469 U.S. 1108, 105 S.Ct. 785, 83 L.Ed.2d 779 (1985) (dissolution court has common-law authority to change name); Hall v. Hall, 30 Md.App. 214, 351 A.2d 917, 922 (1976) (may change name in either statutory or judicial proceeding); accord, Maria E. v. Anthony E., 125 Misc.2d 933, 481 N.Y.S.2d 227, 228 (N.Y.Fam.Ct.1984) (family court had authority to change name in paternity proceedings).

Other jurisdictions have denied a name change in a dissolution action holding that name change statutes provided the exclusive remedy. Viola v. Fundrella, 241 N.J.Super. 304, 574 A.2d 1036, 1038-39 (Ch.Div.1990); Mayor v. Mayor, 17 Conn.App. 627, 554 A.2d 1109, 1111 (1989); Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1192 (Alaska 1987).

Our chapter on Dissolution of Marriage Act, Iowa Code chapter 598, provides authority to change a party's name, Iowa Code section 598.37, but does not provide specific authority to change a child's name. When we examine our custody statute, Iowa Code section 598.41, we believe that authority to change a child's name may be inferred. Section 598.41 provides the court with broad...