Opinion
No. 5-571 / 05-0050
Filed November 9, 2005
Appeal from the Iowa District Court for Adams County, David L. Christensen, Judge.
Timothy West appeals from the property and visitation provisions of his dissolution decree. AFFIRMED AS MODIFIED.
Andrew B. Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellant.
Ann M. Nielsen of Nielsen Nielsen, P.C., Corning, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, J.
This is an appeal from the property and visitation provisions of a dissolution decree. We affirm.
I. Background Facts and Proceedings
Timothy and Kathryn West married in 1984 and divorced twenty years later. At the time of the divorce, they had two living children.
In 1991, Tim and Kathy purchased a home with eighty acres of surrounding farm land. They raised crops and owned cattle. The district court awarded the entire eighty-acre parcel, including the house, to Kathy.
The parties also accumulated personal property. The district court awarded Tim property valued at $59,870 and Kathy property valued at $11,360. In response to a motion to enlarge filed by Tim, the court subsequently amended this portion of the decree.
After the parties separated, the children remained with Kathy. The parties stipulated to a temporary visitation schedule. Following trial, the district court laid out a permanent schedule which, in part, afforded Tim visitation every Wednesday from after school until 9:00 p.m. and summer visitation for one week each June, July and August.
Timothy appeals the court's (1) distribution of the eighty-acre parcel, (2) division of property, and (3) visitation schedule. Our review is de novo. Iowa R. App. P. 6.4.
II. Eighty-Acre Farm
In awarding the entire eighty-acre farm to Kathy, the district court reasoned:
[T]he farm will be most productive if kept as a unit rather than divided into separate parcels; the cattle operation is small; the parties have had substantial losses in their farming operation during the past three years as shown on their income tax returns; their farming operation can best be characterized as a hobby farm; the parties' difficulties in getting along during the pendency of this action make it impractical for them to be neighbors.
Tim contends "the factors utilized by the district court are not supported by the evidence." We disagree.
First, we examine the district court's finding that the farm would be more productive as a unit. The parties proffered two alternatives. Tim asked that he receive the majority of the farm land, with Kathy receiving the house and 1.8 surrounding acres. Kathy proposed to retain the house and fifteen acres.
Tim's proposal would have eliminated Kathy's access to a pond, which was one source of water for the house. Kathy's proposal would have cut into a pasture where Tim kept hay for his cattle, as well as areas where Tim kept farm machinery and a supply of winter water. Additionally, all the buildings were located on those fifteen acres. As both these proposed methods of division were problematic, the court acted equitably in concluding the farm would be more productive as an undivided parcel.
The district court next cited the fact that the parties' cattle operation was small. The record reveals the parties only had seven head of cattle.
The district court also noted that the farming operation experienced substantial losses during the three prior years. The record reflects that the farm sustained losses of $16,935 in 2003, $8,490 in 2002, and $19,652 in 2001.
The district court next characterized the farm as a "hobby farm." The record reveals both parties had off-the-farm jobs. Tim was employed full-time by the City of Prescott and Kathy worked as a nurse. In addition, the farm only had forty-five tillable acres. Therefore, the farm was not a source of livelihood for the family. Cf. In re Marriage of Callenius, 309 N.W.2d 510 (Iowa 1981) (noting Callenius was a full-time farmer farming up to 1,110 acres, had a cow/calf and hog operation, and, in one year, 3,849 head of hogs and 907 head of cattle).
The district court finally cited the parties' difficulties in getting along as grounds for declining to divide the farm land. There is evidence to support this factor, in the form of testimony from Kathy.
In sum, the district court's findings concerning the farm find ample support in the record. In addition, we note that Tim received substantially more in personal property than did Kathy, Kathy was ordered to pay Tim a $31,000 equalizing payment, and Kathy assumed the debt on a farm loan. Finally, Iowa Code section 598.21(1) (2003) addresses the desirability of awarding the family home to the person having physical care of the children. This factor also supports an award of the eighty-acre parcel to Kathy.
III. Overall Property Division
Tim argues "Kathy received over $43,719.90 more in net assets than [he did]" and "[t]o correct this error, this court should order Kathy to pay Tim an additional $12,604.90." Tim's argument is premised on his belief that the district court improperly valued the parties' personal property, made an arithmetic error, and failed to incorporate certain changes in valuation that had been previously ordered.
A. Valuation.
We will not disturb the district court's valuation when it is within the permissible range of credible evidence. In re Marriage of Bare, 203 N.W.2d 551, 554 (Iowa 1973). The district court accepted most of the values assigned by Kathy. This was the court's prerogative.
B. Arithmetic Error.
Tim also points to an arithmetic error contained in the decree which resulted in an undervaluation of his property by $3,000. Kathy concedes this error but argues Tim received money prior to trial that should have been equitably divided between them, and the value of this property offsets the amount of the undervaluation. Specifically, she testified that a federal tax refund of $3,183 was deposited into Tim's account sometime "after he filed for divorce."
The value of the parties' assets should be determined as of the date of trial. In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997). Kathy did not establish that the tax refund remained in Tim's account at the time of trial. In the absence of evidence that Tim purposefully dissipated the money, we decline to offset these funds against the conceded undervaluation.
C. Failure to Incorporate.
Tim also points out that an air compressor was listed twice on the court's property valuation statement, once with a $200 value, and once with a $300 value. He contends there was only one air compressor and its value was $200. He also contends an "MF #20 tractor" with a listed value of $3,000 is only worth $500. The district court granted Tim's motion with respect to these items but did not amend the decree to reflect the reduced value. We agree the air compressor valued at $300 should be eliminated from Tim's property list and the tractor should be valued at $500 rather than $3,000.
IV. Visitation
In establishing visitation rights, the governing consideration is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Under the decree, Tim is entitled to visitation with the children until 9:00 p.m. on Wednesday evenings. Tim seeks overnight visitation with the children on Wednesdays. We see no reason to modify this provision.
The district court ordered one week of visitation per month during the summer. Tim seeks to have the children for the entire summer, subject to reasonable visitation by Kathy. At trial, Kathy testified that such an arrangement would be unworkable because she could not get help from Tim in transporting the children to their summer activities and she desired to take some vacation time with the children in the summer. These reasons support the visitation schedule ordered by the district court.
V. Disposition
The amended decree is modified to reflect: (1) the $3,000 arithmetic error in Tim's property award; (2) the erroneous inclusion of an air compressor valued at $300; and (3) the $2,500 difference in the tractor's value. Accounting for these errors, Tim's property should be valued at $54,070 rather than $59,870. Kathy should pay Tim an additional $2,900 no later than sixty days after the issuance of procedendo. The remaining provisions of the amended decree are affirmed.
AFFIRMED AS MODIFIED.
Costs of this appeal are assessed to Timothy E. West, petitioner-appellant.