Opinion
No. 3-555 / 02-1256
Filed September 24, 2003
Appeal from the Iowa District Court for Linn County, Amanda P. Potterfield, Judge.
Teena Aller appeals from various portions of the decree dissolving her marriage to Brian Aller. AFFIRMED.
David McManus of Glasson, Sole, McManus Pearson, P.C., Cedar Rapids, for appellant.
Christine Crilley of the Crilley Law Office, Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Teena Aller appeals from various portions of the decree dissolving her marriage to Brian Aller, alleging several errors by the district court. We affirm.
I. Background Facts and Proceedings. Brian and Teena married on May 6, 1995, and had two children of the marriage, Michele and Matthew.
In November 1996, the parties purchased a house on contract from Teena's grandparents for $110,000.00. A separate agreement, fully integrated with the purchase contract, provided the following:
Upon our expiration, the Sellers hereby request the Executor of our estate, to honor a $25,000.00 discount on this contract. This discount may be all or a portion of Teena Allers [sic] inheritance from our estate, depending on the value of the estate.
In 1998, before the death of either of Teena's grandparents, the couple secured a mortgage on the home and paid the full amount remaining on the contract.
Teena filed a petition for dissolution of marriage on May 17, 2001. The couple agreed that Teena should have physical care of the children, but the remaining issues, including visitation, property division, and alimony, were tried to the district court. In its decree dissolving the marriage, the district court determined Brian should pay child support of $784 a month. This amount included a thirty-five percent reduction in the amount of child support that would otherwise be owed pursuant to the guidelines because Brian was granted extraordinary visitation, including midweek and weekend overnight visits. The district court awarded the marital home and all equity in the home to Teena in lieu of alimony. The district court also rejected Teena's contention that her grandparents gave her a $25,000 gift when they sold the home to the couple on contract. Each party was ordered to pay their own attorney fees. Teena appeals, alleging the district court erred in establishing the amount of child support, not concluding her grandparents had made a $25,000 gift to her, not awarding her alimony in some amount, and not requiring Brian to pay her attorney fees. She also requests that several documents filed by Brian after entry of the decree be stricken from the court file and that Brian be required to pay her appellate attorney fees. Brian, in his response, requests Teena pay his appellate attorney fees.
II. Standard of Review. Our review of the economic and visitation provisions of a dissolution decree is de novo. Iowa R.App.P. 6.4. We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 6.14(6)( g). Our primary concern when establishing visitation privileges is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992).
III. Child Support and Visitation. Teena challenges the amount of child support the district court determined Brian should pay. She disagrees with the annual income figure used by the district court to calculate child support. She further argues that Brian should not have been granted visitation so frequent as to qualify him for a thirty-five percent reduction in the amount of child support he is required to pay under the guidelines. Although Brian asserts Teena failed to preserve error on the visitation issue, we will assume error was preserved and address both of Teena's challenges to the child support calculation.
Teena argues that the amount of child support she was awarded is inadequate. She suggests multiple ways to adjust the child support calculation to ensure the amount is large enough to meet her economic needs, including (1) increasing the base salary used in the calculation by including Brian's bonus and profit-sharing contribution or (2) reducing Brian's visitation with the children so that he does not qualify for a thirty-five percent reduction in his calculated child support.
After our de novo review of the record, we conclude the district court correctly calculated the amount of child support Brian should be required to pay. We agree with the district court that Brian's annual salary, for child support calculation purposes, is $75,000 and should not include any potential bonuses or money contributed by Brian's employer into a pension fund on Brian's behalf. We conclude that Brian's bonuses are not sufficiently certain to be considered in the child support calculation. We also agree that pension contributions made on Brian's behalf also should not be considered in the child support calculation. See In re Marriage of McKamey, 522 N.W.2d 95, 98 (Iowa Ct.App. 1994) (noting that gross income for child support calculation purposes is normally the same as a parent's "total taxable" income on a federal 1040 form).
We further conclude that the visitation schedule ordered by the district court promotes the best interests of the children. Although Teena does make factual allegations regarding the children returning from visitation with Brian with blisters and bruises, she does not argue that the children are at risk while in Brian's care. She does not contend that the extensive visitation schedule is not in the children's best interests, and, likewise, we find nothing in the record indicating the children's best interests are not served by extraordinary visitation with their father. Despite the fact that the resulting decreased child support is less than Teena would prefer, we find the district court's visitation schedule and child support calculation equitable and in the best interest of the children. Accordingly, we affirm on this issue.
IV. Teena's Gift from her Grandfather. Teena also asserts the district court erred when it determined that she was not entitled to reimbursement from Brian for a $25,000 gift she allegedly received when the couple purchased her grandparents' house. Relying on the plain language of the contract and Brian's testimony, the district court concluded that no gift was made to Teena. After our de novo review of the record, we agree with the district court's conclusion. The contract clearly contemplated a $25,000 discount on the contract balance upon the death of Teena's grandparents. When Teena and Brian refinanced the house and paid off the contract, they paid off the total amount owed. The contract balance was fully paid without a discount while Teena's grandparents were still alive. Although Teena presented evidence that the house may have been worth more than $110,000.00 at the time of purchase, we conclude no gift was intended in this case. We affirm on this issue.
V. Alimony. Teena argues she should have been granted rehabilitative alimony in some form from Brian. The district court awarded the marital home and all its equity to Teena in lieu of alimony. We conclude, given this property division, which is not contested by either party, that no alimony is warranted and affirm.
VI. Motion to Strike Brian's Notices to the Court. After perfecting her appeal to this court, Teena filed a motion requesting the district court to strike from the record certain documents filed by Brian post-trial in the district court. The district court, in its order dated September 13, 2002, declined to take any action on the issue because the case was on appeal. While we may have doubts about the district court's determination that it did not have jurisdiction to decide the merits of Teena's motion, see Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995) (noting the trialcourt retains jurisdiction over disputes between the parties which are collateral to the subject matter of the appeal), Teena did not appeal from the September 13, 2003 ruling. Accordingly,the merits of that ruling are not properly before us at this time.
VII. Attorney Fees. Teena maintains the district court erred when it ordered the parties to pay their own attorney fees. She asserts Brian should pay both her trial and appellate attorney fees. Brian requests Teena pay his appellate attorney fees.
Our review of a district court's award or denial of attorney fees is for an abuse of discretion. In re Marriage of Garst, 573 N.W.2d 604, 608 (Iowa Ct.App. 1997). We find no abuse of discretion in the district court's determination that each party should pay their own attorney fees.
An award of appellate attorney fees is discretionary. We must consider the needs of the requesting party, the other party's ability to pay, and whether the requesting party was obligated to defend the district court's decision on appeal. In re Marriage of Davis, 608 N.W.2d 766, 773 (Iowa 2000). After considering these factors, we conclude that Brian and Teena should each be responsible for their own appellate attorney fees.