Opinion
No. 03-1871.
July 28, 2004.
Appeal from the Iowa District Court for Cedar County, Bobbi M. Alpers, Judge.
Tracy Grunder appeals the district court's dissolution decree, asking for a new trial, and she appeals custody, visitation, child support, and alimony provisions of the decree. AFFIRMED.
Sherry Schulte of Howes Law Firm, P.C., Cedar Rapids, for appellant.
Constance Stannard, of Johnson Nathanson, P.L.C., Iowa City, for appellee.
Heard by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Tracy Grunder appeals a dissolution decree. She contends she is entitled to a new trial because the district court limited the trial to a single day. She also challenges the court's custody, visitation, child support, and alimony rulings. We affirm.
I. Background Facts and Proceedings
Tracy and Brian Grunder married in 1988. They have three children: Ty, born in 1992, Brady, born in 1993, and Brinn, born in 1997.
Tracy sought a divorce in 2002. Trial was scheduled for two days. Later, the length of trial was reduced to a single day. Following trial, the district court awarded physical care of the couple's three children to Brian, subject to liberal visitation. Tracy was ordered to pay child support of $588 per month and her request for alimony was denied.
Tracy moved for a new trial, arguing that she did not have sufficient time to put on and examine witnesses. She also moved to enlarge or amend certain findings and conclusions. Following a hearing, the district court rejected Tracy's challenge to the truncated trial but amended its decree to 1) expand Tracy's visitation and 2) lower Tracy's child support obligation to $526.08 per month. Tracy appealed.
The court made two other changes that are not at issue here.
II. Time Limit
Tracy contends that the shortened trial amounted to an "irregularity" or an "abuse of discretion which prevented the movant from having a fair trial." Iowa R. Civ. P. 1.1004(1). Brian responds that Tracy failed to preserve error by objecting to the truncated schedule during trial. We are inclined to agree. See Top of Iowa Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (stating motion for new trial must rest on exception or objection made at trial); cf. In re Marriage of Ihle, 577 N.W.2d 64, 67-69 (Iowa Ct.App. 1998) (considering challenge to time limitation, but declining to review de novo because due process implications of limitation not raised below). However, we will bypass our error preservation concern and proceed to the merits.
Review of a ruling denying a motion for new trial depends on the grounds asserted in the motion. See Estate of Long ex rel. Smith v. Broadlawns Med. Ctr., 656 N.W.2d 71, 88 (Iowa 2002) ("'[I]f the motion is based on a legal question, our review is on error,' but if `the motion is based on a discretionary ground, we review it for an abuse of discretion.'"). Our review here is for an abuse of discretion. Ihle, 577 N.W.2d at 68.
After considering Tracy's handling of the truncated schedule and her failure to establish she was prejudiced by it, we discern no abuse of discretion. Ihle, 577 N.W.2d at 69 (stating it is "incumbent upon the party seeking additional time to present evidence to establish prejudice. We will not presume the existence of prejudice when evidence is excluded from trial."). Specifically, Tracy raised no concerns when the court reduced the scheduled trial time from two days to one day. She raised no concern at trial when, in the middle of the day, the trial judge advised the parties they would be finishing promptly at 4:30 p.m. And she offered no objection when, at the end of the day, the trial judge acknowledged that the parties might have additional witnesses, but stated she intended to "wrap up." Even Tracy's post-trial written argument to the court included no objection to the length of the trial. See Ihle, 577 N.W.2d at 69 (noting, in support of its conclusion that no abuse occurred, absence of record on whether wife'sattorney encountered problems managing the time allotted for trial and noting wife used more time than did her former husband).
Notably, Brian's post-trial argument did raise the timing issue. He stated, "Respondent felt that he did not have sufficient time to present his case to the court. He asked for two days of trial, but only one was allowed. During that one day of trial, most of the time was used by the Petitioner."
Tracy raised the time limitation issue for the first time in her new trial motion and then mentioned only one witness she would have called had the trial been longer. That witness, a school guidance counselor, would have testified that she "saw Tracy regularly at the school with the children and . . . witnessed her extensive involvement in their activities." As Tracy's involvement with the children's school activities was not seriously questioned, she did not establish she was prejudiced by the district court's denial of her new trial motion.
III. Physical Care
Tracy next argues that the district court should have awarded her physical care of the children. On our de novo review, we see no reason to disturb this portion of the court's decree.
The record reveals that both parents were active in the children's lives. They attended school functions, ball games, and other activities and continued to live under the same roof even after the divorce proceedings were initiated. While each party criticizes the other for certain failings, the overall picture created by the record is one of two suitable parents.
Our decision to affirm the custody award is based in part on this conclusion that both parents are suitable caretakers. We have stated that, in such cases, it is appropriate to give due consideration to the district court's opportunity to observe and evaluate the parties before coming to its decision. See In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct.App. 1996).
The district court here acknowledged that both parents were "generally capable of providing primary care," but expressed concern regarding Tracy's emotional condition at trial. The court stated, "Tracy's emotions seemed to be beyond the ordinary tearfulness." Tracy attempts to minimize this finding on appeal; but we are not in a position to discredit the district court's finding based upon the written transcript. In re Marriage of Behn, 385 N.W.2d 540, 543 (Iowa 1986) (quoting In re Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974)) (stating "[i]n these dissolution cases, a court is greatly helped in making a wise decision about the parties by listening to them and watching them in person"); cf. Wilker v. Wilker, 630 N.W.2d 590, 598 (Iowa 2001) (awarding custody to father where both parties had "positives and negatives," but mother suffered from depression and chose not to treat it). On this record, we affirm the district court's physical care award.
IV. Visitation
The district court awarded Tracy visitation on alternating weekends from Thursday at 6:00 p.m. until Sunday at 6:00 p.m., for four weeks in the summer, on alternating holidays and birthdays, Mother's Day, all of spring break in alternating years, and one half of the December holiday break. Tracy now seeks overnight visitation every Thursday or, in the alternative, an additional evening each week from 6:00 p.m. to 9:00 p.m.
We believe the district court's schedule is equitable. If Tracy desires more visitation, she is free to request it. Like the district court, we encourage the parties "to talk and mutually agree to additional or alternative visitation."
V. Child Support
Iowa Court Rule 9.7(2) of the child support guidelines, provides for "a credit to a noncustodial parent's child support obligation when that parent's court-ordered visitation exceeds certain parameters." In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa 2002).
Tracy argues that the district court should have awarded her an extraordinary visitation credit to reduce her child support obligation by twenty-five percent. We reject this contention because Tracy's court-ordered visitation does not reach the guideline threshold required to qualify her for the extraordinary visitation credit.
VI. Alimony
The district court rejected Tracy's request for alimony. On appeal, Tracy contends that equity demands she receive$500 per month for ten years. To support her claim, she points to Brian's annual income of approximately $52,927, with overtime, relative to her annual income of $22,170. See In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998) (citing In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993) (stating disparity in earning capacity may be ground for spousal support award)). She appears to contend that this disparity warrants an award of traditional alimony. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997) (stating traditional or permanent alimony usually payable for so long as spouse is incapable of self-support).
Despite this earnings disparity, we agree with the district court that Tracy has the ability and means to support herself. Tracy has an agricultural business degree. As the district court noted, she "has worked full time throughout the parties' marriage." Given her degree, she is capable of earning more than she did at trial. See In re Marriage of Wegner, 434 N.W.2d 397, 399 (Iowa 1988) (stating court must consider "not simply present income, but his or her earning capacity as directed by Iowa Code section 598.21(3)."). Because she is capable of self-support, an award of traditional alimony is inappropriate.
Tracy also has not established an entitlement to rehabilitative alimony, as she testified that she did not plan to return to school or improve her skills. See In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989) (stating rehabilitative alimony provides means of support for economically dependent spouse through limited period of education or retraining).
Reimbursement alimony likewise is not appropriate. See In re Marriage of Probasco, 676 N.W.2d 179, 185-86 (Iowa 2004) (stating reimbursement alimony is typically awarded when spouse seeking support did not have opportunity to share in financial benefit of other spouse's degree). Although Brian earned an associates degree during the marriage, he continued to work while he studied for his degree. The $3,500 to $4,000 to pay for the degree came from a joint checking account. Tracy conceded that the degree "was well worth it" because "it allowed Brian to move out of swing shift, get a job with straight days with his weekends off, an increase in pay." She also conceded that she came to the marriage with student debt, which was paid off during the marriage.
We conclude the district court acted equitably in declining to award alimony.
VII. Disposition
We affirm the district court in all respects.
AFFIRMED.