Opinion
No. 4-076 / 03-0852
April 28, 2004.
Appeal from the Iowa District Court for Johnson County, Patrick R. Grady, Judge.
Gregory Calvert appeals the district court's ruling regarding the alimony, child custody, and property division provisions of the dissolution decree. AFFIRMED.
Douglas Q. Davis, II, and Dennis A. Bjorklund of Bjorklund Law Firm, L.L.C., Coralville, for appellant.
Sharon Mellon of Mellon Spies, Iowa City, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Gregory and Linda Calvert divorced after a lengthy marriage marked by physical and emotional abuse. Gregory now appeals the custody, property, and alimony provisions of the district court's dissolution decree. We affirm.
I. Background Facts and Proceedings
Linda (Lynn) and Gregory (Greg) married in 1978. This was Lynn's second marriage. Lynn had two children during her first marriage and Lynn and Greg together had two children, Abigail and Scot. Only Scot's custody is at issue.
The older child was the product of an affair with Greg.
Lynn was employed as a nurse through most of the marriage. Greg worked at a number of jobs, most of them related to electrical wiring or computer technology. His employment ended in 1996 when he had a severe heart attack. He began receiving Social Security disability benefits in 1998.
In 1999, Lynn sought a divorce and also filed a petition for relief from domestic abuse. The district court entered a temporary protective order and, following a hearing, extended it. Pursuant to this order, Lynn was awarded exclusive occupancy of the family home and custody of Abigail and Scot. The order forbade Greg from having contact with Lynn and the children, with the exception of attorney-arranged visitation. Greg's motion to reconsider the ruling was denied and he did not appeal.
About a year after filing the domestic abuse petition, Lynn sought another temporary restraining order. The district court granted the request and denied Greg's motion for reconsideration, ordering "that the temporary restraining order shall remain in effect until the decree is entered in this case. . . ."
After numerous proceedings not directly relevant to this appeal, the parties went to trial. Following trial, the district court made the second temporary restraining order permanent, awarded Lynn sole custody of Scot, subject to visitation with Greg, divided the parties' property, and ordered Lynn to pay Greg alimony of $300 per month until Greg reaches sixty-two, dies, remarries, or elects to take a lump sum payout of his share of Lynn's retirement account awarded to him. Greg appealed.
II. Custody
Greg argues that the district court's sole custody order is based on a faulty premise that he had a history of domestic abuse assaults. See Iowa Code § 598.41(3)(j) (1999) (listing "history of domestic abuse" as factor in a court's determination of a child's best interests). We disagree.
A history of domestic abuse is one ground for awarding a party sole custody of a child. See Iowa Code § 598.41(1)(b). It is not the only ground. Our courts have awarded a party sole custody for a variety of other reasons. See, e.g., In re Marriage of Liebich, 547 N.W.2d 844, 849 (Iowa Ct.App. 1996) (affirming award of sole custody where parties could not communicate with each other and made unfounded allegations against each other); In re Marriage of Winnike, 497 N.W.2d 170, 174 (Iowa Ct.App. 1992) (affirming award of sole custody based on parties' inability to communicate, emotional harm to child, and use of visitation to gain advantage in litigation). The district court recognized this, stating that "at most, there would be three incidents that might be described as domestic abuse assaults and that two were in the far-distant past." The court found, however, that
what is most remarkable about the relationship between these two parties is the overwhelming evidence of Gregory's verbal and emotional abuse of Linda and the fact that that verbal and emotional abuse was witnessed by all four children and directly experienced by at least Linda's two oldest daughters.
The court further found "the evidence is more than clear and convincing that Gregory would regularly yell and belittle Linda and would throw items such as books and dishes and that this was his way of controlling the family environment."
The court concluded:
the emotional scars left upon Linda from the last 25 years of marriage to Gregory are strong enough that neither Linda nor Scot should have to deal with the negative impact of Gregory's behavior upon Linda and possibly Scot. There is no way this couple can share in joint decision-making given this history.
The record is replete with evidence to support the district court's findings and conclusion. There is no benefit in detailing this evidence. Suffice it to say that Greg's tendency toward anger and intimidation makes him an unsuitable primary caregiver, renders it virtually impossible for the couple to make joint decisions regarding Scot, and suggests he will not foster Scot's relationship with his mother. On our de novo review, we affirm the district court's decision to award Lynn sole custody of Scott.
III. Alimony
Greg next takes issue with the court's alimony award of $300 per month until either party dies or Greg remarries or reaches sixty-two. In awarding him this sum, the district court stated:
As noted, the court also included the following provision:
Should Respondent elect to take a lump sum payout of a TIAA-CREF account awarded to him as set out below prior to age 62, alimony will terminate the first of the month following the payment.
[T]his is a marriage of long duration and the Court must be sensitive not to let fault enter into its decision. The Court finds that Gregory has substantial needs based on his history of heart ailments and necessity for kidney dialysis. He will be essentially uninsurable once he is no longer covered by Linda's policy. The Court notes that Linda has substantial debts and is still raising children without substantial child support. She does, however, have very steady employment and, pursuant to the division, both parties have their respective TIAA-CREF accounts that may serve as some basis for support. The Court finds that Gregory is economically dependent and the Court finds his employment prospects, given that he must have dialysis during the regular business day, are substantially limited.
These facts are supported by the record and justify an award of alimony to Greg. We also agree with the court's determination of the amount and duration of the award. There is no question that Lynn's annual income of $58,258 plus $6480 per year in Social Security disability dependent benefits far exceeded Greg's annual disability stipend of $12,984. However, Lynn's debts were substantial. She was obligated to pay $363 per month to service three debts and had an $852 per month mortgage payment. In addition, her itemization of living expenses did not reflect a lavish lifestyle.
We recognize that Greg's financial situation is also precarious. He attested to monthly pharmacy bills of $1600 which were not covered by Medicare. These bills had been covered by Lynn's family health insurance plan, but that benefit was to end with the divorce. Moreover, COBRA coverage would be temporary and would cost Greg $260 per month.
Insurance continuation offered by an employer, by law, upon the occurrence of a qualifying event, such as divorce. See Consolidated Omnibus Budget Reconciliation Act, 29 U.S.C. § 11611-1169.
Notwithstanding Greg's circumstances, the overriding factor is Lynn's ability to meet the financial obligations imposed by the decree. See Iowa Code § 598.21(1)(m); In re Marriage of Siglin, 555 N.W.2d 846, 849-50 (Iowa Ct.App. 1996). Given the limited pool of income and assets from which she could draw, we believe the court's award was equitable. See Junger v. Junger, 215 Iowa 636, 638, 246 N.W. 659, 660 (1933) (stating "[w]e should find it very difficult indeed to give any reason predicated upon this record that would justify us either to add to, or take from, the order made by the district court.").
IV. Property
On appeal, Greg also takes issue with the district court's property settlement and, particularly the court's valuation of the parties' home at $110,000. Before trial, however, Greg proffered a value of $111,000. Although he later amended his valuation to $125,600, the district court found cogent reasons for rejecting this figure. As those reasons are supported by the record, we reject Greg's challenge.
As for the balance of the property distribution, we note that Greg received one-half of Lynn's retirement account, valued by the district court at $202,340. He did not receive the parties' home, but also was not assigned the $90,700 mortgage. We conclude the court's award was equitable. Lynn's request for appellate attorney fees is denied based on the relative financial positions of the parties.