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IN RE MARRIAGE OF CLIFTON11/28/1994
Petitioner-appellant David Frank Clifton appeals the district court's refusal to grant him physical care of his daughter, Stephanie. David also claims the trial court incorrectly calculated his child support obligation. We affirm.
The marriage of David and respondent-appellee Lea Ann Clifton was dissolved in 1988. The custody of Stephanie, born in 1981, was granted to David and Lea Ann jointly. Physical care was awarded to Lea Ann. David was ordered to pay $180 a month in child support. In December 1992, David filed this petition for modification and Lea Ann counterclaimed for a modification to increase child support. [526 NW2d Page 576]
We first address David's claim the trial court should have excluded evidence of his settlement offers. David complains the trial court improperly considered settlement negotiations in reaching its decision. Evidence was admitted that David would retreat from his claim to gain physical care of Stephanie if Lea Ann would not ask for a change in the amount of child support he owed. David had objected to the evidence as being inadmissible under Iowa Rule of Evidence 408. The trial court considered this evidence in its finding. David contends the evidence of settlement negotiations should have been excluded under Iowa Rule of Evidence 408. Lea Ann advances this rule of evidence should not be applicable to dissolution proceedings.
Iowa Rule of Evidence 408 provides:
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Iowa common law had been basically in accord with Rule 408 adopted in 1983. See Iowa Rules of Court, Iowa R.Evid. 408, Committee Comment (West 1993); see also Lewis v. Kennison, 278 N.W.2d 12, 14 (Iowa 1979) (citing Federal Rule of Evid. 408).
A rule excluding offers of compromise in litigation tendered as an admission of weakness of the opposing party's claim is supported by a public policy of promoting compromise. See State v. Burt, 249 N.W.2d 651, 652 (Iowa 1977). And has been found to be available in civil but not criminal suits. Id. The evidence that David offered to dismiss his petition for modification in exchange for a dismissal of the modification seeking increased child support was used by the trial court as evidence of weakness in David's case. Lea Ann contends Rule 408 is not applicable in dissolution cases because in Burt, 249 N.W.2d at 652, the court said it was only available in civil cases. The court in Burt used the reference civil as contrasted to criminal. We determine the rule is applicable in dissolution cases. Clearly, the public policy of encouraging settlements is as strong or stronger in a dissolution case as in, for example, a personal injury case. We see no valid reason to determine the rule is not applicable in dissolution cases.
We review de novo. Iowa R. App. P. 4. Therefore, we do not consider the evidence of David's offer of settlement in making our factual finding in this case.
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