Opinion
No. 4-243 / 03-1879.
June 9, 2004.
Appeal from the Iowa District Court for Jones County, Thomas Koehler, Judge.
The petitioner appeals and respondent cross-appeals the order dissolving their marriage. AFFIRMED AS MODIFIED.
Karla Wolff, Cedar Rapids, for appellant.
Craig Elliott of Elliott McKean, Anamosa, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
David Fitkin appeals and Darlene Fitkin cross-appeals the decree dissolving their marriage. At issue in this appeal are the physical care of their child, Miriam, and various economic provisions of the dissolution decree. We affirm, as modified.
Background Facts and Proceedings.
David and Darlene were married in August of 1989. At the time of the marriage, each party owned their own home; however, they each sold their home and purchased one together in St. Louis, Missouri, following the marriage. Also, at the time of the marriage, David had physical care of two children from a previous marriage, while Darlene had physical care of three children from a previous marriage. Shortly after the marriage, Darlene, who had been a part-time student, began staying at home with the parties' children. David continued to work full-time, but also returned to Coe College and received his Bachelor's of Arts degree in 1999.
In May or June of 1991, the family moved to Iowa for business opportunities for David and specifically to Anamosa, due in large part to the presence of the Apostolic Pentecostal Church. Darlene gave birth to a daughter, Miriam, in October of the same year. Later, in the fall of 1998, Darlene began home-schooling all of their children, including Miriam. In that same year, David had a disagreement with the pastor in the Anamosa church, and the family began attending church in Waterloo instead. In 2002, after the parties separated, Darlene moved with Miriam to Waterloo, where she enrolled Miriam in the Celebration Christian Academy.
In August of 2002, David filed a petition seeking to dissolve the marriage. A temporary order was entered granting temporary physical care of Miriam to Darlene and ordering David to pay child support and alimony. Following trial, the district court entered an order which dissolved the marriage, granted primary care of Miriam to Darlene, ordered David to pay child support and alimony, and divided the parties' assets and liabilities. David appeals and Darlene cross-appeals.
Scope of Review.
In this action, our review is de novo. In re Marriage of Wessel, 520 N.W.2d 308, 309 (Iowa Ct.App. 1984). We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Wessel, 520 N.W.2d at 309.
Physical Care.
David appeals the portion of the dissolution decree granting Miriam's physical care to Darlene. The factors the court considers in awarding custody are enumerated in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). All factors bear on the "first and governing consideration," the court's determination of what will be in the long-term best interests of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). The critical issue in determining the best interests of the child is which parent will do better in raising the child. In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App. 1985).
Upon our de novo review, we believe the concerns expressed in the district court's decree warrant the decision to name Darlene as Miriam's physical caretaker. Based on its first-person observation of David at trial, the court characterized David as "very `controlling,' arrogant, and believes that he is intellectually superior to Darlene." These observations appear founded in the record and tend to support the district court's resolution of the custody question.
On appeal, David goes to great lengths to criticize Darlene for her decision to enroll Miriam in a private church school. We note that prior to his marriage to Darlene, David's children attended a Christian school, and it was largely David's decision to pull their children out of the Anamosa public school system. In addition, it is clear David had a long history of church involvement and that it was an important factor in his life, although not without major disagreements with the church from time to time. Thus, it seems inconsistent to us that he would now claim Darlene's decision to send their child to a religious school would be a reason he should be granted Miriam's physical care instead of Darlene.
Darlene is not without her shortcomings, including moving to Waterloo and enrolling Miriam in the private school without discussing either major decision with David. Such unilateral decisions are not the type of conduct a parent should engage in. See generally Iowa Code § 598.41 (2001) (stating the court shall order custody which will "encourage parents to share the rights and responsibilities of raising the child."). In this case, the record is clear that both parents love and could well provide for Miriam's care but on our de novo review, we find no cogent reason to upset the district court's decision.
Accordingly, we affirm the decision to grant physical care of Miriam to Darlene and admonish both David and Darlene from acting in any manner which would undermine the other's relationship with their child.
Proceeds from the Sale of David's Premarital Home.
At the time of their marriage, both David and Darlene owned a house. On the day of their marriage, David sold his house and used the $38,000 in proceeds for the down payment of the parties' marital home. Darlene's home was later sold, without profit. The district court declined David's request to be credited, in the dissolution's property division, for that down payment. Rather, it divided the equity of the parties' current house equally, without any credit to David for his substantial premarital contribution. David now contends the court should have set aside $38,000 to him before dividing the parties' assets.
The partners to a marriage are entitled to a just and equitable share of property accumulated through their joint efforts. See In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa Ct.App. 1997). The Iowa courts do not require an equal division or a percentage division in determining a just and equitable share of property. Id. Instead, each particular circumstance determines what is fair and equitable. Id. Further, the property distribution should be made pursuant to the criteria codified in Iowa Code section 598.21(1).
Property which a party brings into the marriage is a factor to consider in making an equitable division. Iowa Code § 598.21(1)(b). In some instances, this factor may justify a full credit, but it is not required. In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct.App. 1996). A premarital asset is not otherwise set aside like gifted or inherited property. Id.
On our de novo review, we agree with David's position that he should be credited for the $38,000 in assets he brought into the marriage from the proceeds of his premarital home. The district court refused to credit David for the down payment because "the parties were married and their funds were commingled, taking into account the Respondent's former residence and the substantial work by the Respondent at the time of the purchase." We believe this is inadequate justification for allowing Darlene to now claim assets David so clearly brought into the marriage. Darlene claims the court's award is equitable because she acted as realtor for the sale of her house and for the purchase of their St. Louis marital home. However, the record is devoid of evidence as to the amount of realtor fees avoided by this act. Thus it would be guesswork to credit Darlene for the amount allegedly saved. We conclude equity is best served by crediting David for these funds.
The district court found the parties' Anamosa residence has a value of $68,000 and that there is approximately $20,000 owing on the loan. Thus, the home has $48,000 in equity, and the district court ordered David to make an equalization payment to Darlene representing her equal share of that equity, or $24,000. Having now decided Darlene is not entitled to share in the $38,000 in assets David brought into the marriage from the sale of his premarital home, we conclude that David is entitled to $38,000 of the house's $48,000 equity, and that Darlene is only entitled to share in the remaining $10,000. We thus modify the decree in this respect, and order that David pay to Darlene an equalization payment of $5000 as her share of the equity of the parties' home, in which David has chosen to remain. This amount shall be paid within sixty days after the issuance of procedendo in this case.
Darlene claims the district court erred in its valuation of the marital home. She notes that David presented an appraisal finding the home's value to be $66,500, while she presented a market analysis finding the home's value to be $92,500. We conclude the district court's valuation is within the reasonable range of the evidence, and therefore affirm it. Darlene's appraiser admitted she had not been in the house for several years, and only based her figure on a "drive by" and information provided by Darlene. David's appraisal, on the other hand, appears more comprehensive and reliable.
Alimony.
The court ordered David to pay Darlene $500 per month in rehabilitative alimony for sixty months. On appeal, David maintains this amount is too high or not warranted at all, while in her cross-appeal, Darlene asserts the alimony awarded is too low and should be raised to $600 per month.
Rehabilitative alimony is "a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting." In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989). The goal of rehabilitative alimony is self-sufficiency and for that reason "such an award may be limited or extended depending on the realistic needs of the economically dependent spouse." Id. at 64.
We conclude Darlene makes a convincing case that $500 per month in rehabilitative alimony is inadequate. She points out that her yearly income includes $11,401 in employment income, approximately $9000 in child support, and $6000 in alimony (at $500 per month), for a total of approximately $26,400, while her yearly expenses exceed that amount. Thus, she is left with a substantial shortfall, diminishing her standard of living and leaving her economically dependent on David, who, as the district court found, has income in excess of $60,000 per year. We find well-taken Darlene's contention that she simply cannot pay her expenses while still continuing with her college education. We therefore grant her request to modify the decree to provide for monthly alimony payments of $600, to otherwise be paid in accordance with the provisions of the district court's decree.
Attorney Fees.
Darlene has requested attorney fees on appeal. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App. 1987). We are to 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 trial court's decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct.App. 1981). We award no appellate attorney fees and order costs on appeal to be paid one-half by each party.
AFFIRMED AS MODIFIED.
Hecht, J., concurs; Vaitheswaran, J., partially dissents.
I respectfully concur in part and dissent in part. I would affirm the district court opinion in its entirety because, although our review is de novo, I believe the district court's property and alimony awards fall within a range of discretion our highest court has afforded trial courts on these issues. In re Marriage of Wegner, 434 N.W.2d 397, 400 (Iowa 1988) (dissent); See Cole v. Cole, 259 Iowa 58, 60-61, 143 N.W.2d 352 (Iowa 1966).