Opinion
No. 5-257 / 04-0983
Filed May 25, 2005
Appeal from the Iowa District Court for Jones County, Kristin L. Hibbs, Judge.
A husband appeals from the physical care, visitation, child support, and property provisions of the decree dissolving the parties' marriage. AFFIRMED AS MODIFIED.
Crystal Usher of Nazette, Marner, Wendt, Knoll Usher, Cedar Rapids, for appellant.
Gary Shea, Cedar Rapids, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Jason Hansen appeals from the physical care, visitation, child support, and property division provisions of the decree dissolving his marriage to Kimberly Hansen. We affirm the district court's decision to place physical care of the parties' daughter with Kimberly, but modify the visitation provisions to more fully accommodate Jason's atypical work schedule. We also modify the property division provisions to reduce the amount of the equalization payment Jason is required to make to Kimberly. The remainder of the district court's decree is affirmed.
I. Background Facts and Proceedings.
Jason and Kimberly Hanson were married in February 2000. In February 2001 their daughter Sydney was born. The family lived in Springville, which required each party to make a short commute to their place of employment.
Kimberly worked as a loan assistant at a bank in Hiawatha. Monday through Thursday Kimberly worked from 8:00 a.m. to 5:00 p.m., and on Friday she worked from 8:00 a.m. to 6:00 p.m. Jason was employed as a fire fighter and paramedic by the Marion Fire Department. He worked on a rotating schedule which repeated every twenty-one days, spending twenty-four hours on duty and then forty eight hours off duty. Jason also performed methamphetamine remediation duties on an on-call basis. In addition, Jason owned and operated a small cattle business, which was a premarital asset.
Jason's work schedule allowed the parties to minimize the amount of time Sydney spent in the care of others. When neither party was able to care for Sydney, because of work obligations or recreational pursuits, the couple used day care providers and family members to care for the child.
The parties separated in June 2003, and Kimberly filed a petition to dissolve the parties' marriage in July 2003. During the pendency of the proceeding the parties engaged in a shared-care arrangement, whereby Jason had care of Sydney during most of the forty-eight hour periods he was off duty, and Kimberly cared for Sydney during those twenty-four hour periods that Jason was on duty. The three weekends were equally divided between the parties according to Jason's work schedule.
At the time of the May 2004 trial Jason was twenty-seven years old and Kimberly was twenty-three years old. Both were employed full-time at the same jobs and on the same schedules as they had been during the marriage. Jason had a gross annual income of approximately $42,336, and Kimberly had a gross annual income of approximately $26,100. Jason remained in Springville, in the marital residence. Kimberly had moved to Monticello, approximately thirty minutes from Springville, Marion, and Hiawatha.
At the beginning of trial the parties stipulated to the disposition and value of nearly all their assets and debts. The parties also agreed that they should receive joint legal custody of Sydney. However, each party sought Sydney's physical care.
In its May 2004 decree the district court placed Sydney's physical care with Kimberly. In reaching its decision the court determined Kimberly had been Sydney's primary caregiver, "devot[ing] her free time to Sydney [and] . . tak[ing] more of the responsibility for Sydney's care." The court also noted that it appeared Kimberly had been more supportive of Jason's relationship with Sydney than Jason had been of Kimberly's relationship with the child. Finally, the court noted that placing physical care with Kimberly would provide Sydney more stability, given Jason's work schedule.
Jason was ordered to pay child support, and awarded liberal visitation as could be agreed to by the parties. The court set a minimum visitation schedule that awarded Jason visitation not less than every other weekend from 6:00 p.m. on Friday to 6:00 p.m. on Sunday; one mid-week visit from 5:00 p.m. to 8:00 p.m. which would occur, if the parties could not agree upon a day, on a Wednesday; and four weeks of summer vacation. The court set additional conditions on the summer visitation, and further ordered alternating holiday visitation.
The court divided the parties' property in line with the stipulation. Each party received the personal property in his or her possession, and the bank accounts held in his or her individual name. In addition, the court equally divided the portion of Jason's pension that had accumulated during the marriage. Jason received the cattle business. No specific value was attributed to any of these items. The court also set aside to Jason his student loan debt of $4,800, which was incurred prior to the marriage.
The court then divided the parties' remaining assets and debts, which had a net value of $9,926. Jason received a net allocation of $7,742, and Kimberly received a net allocation of $2,184. The court then ordered Jason to make an "equalization payment" to Kimberly of $5,000. In ordering the payment, the court noted the asset division had been made "without consideration of the `unknown' value of [Jason's] cattle."
Jason appeals. He asserts that he should have received the physical care of Sydney. Alternatively, he contends the visitation schedule is too restrictive. In the event we alter physical care or provide extraordinary visitation, Jason asks us to revisit the child support award. Finally, Jason contends it was inequitable to require him to make an equalizing payment to Kimberly. Kimberly requests an award of appellate attorney fees.
Jason appears to raise an alternate contention that the parties should be awarded joint physical care of Sydney, citing to Iowa Code section 598.41(5), as amended effective July 1, 2004. The amended version of section 598.41(5) provides that a court may award joint physical care upon the request of either parent, and that if the court declines to award joint physical care, it must make specific findings of fact and conclusions of law that an award of joint physical care is not in the child's best interest. However, neither party requested joint physical care before the district court, and the amendment to section 598.41(5) was not even effective at the time the decree was entered or the notice of appeal was filed. Accordingly, we do not consider any claim now made that the parties should have received joint physical care of Sydney.
II. Scope and Standards of Review.
Our scope of review is de novo. Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000). Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)( g).
III. Physical Care and Visitation.
In considering the issue of physical care, our overriding consideration is Sydney's best interests. Iowa R. App. P. 14(6)( o). The ultimate goal is to provide Sydney the environment most likely to bring her to healthy physical, mental, and social maturity. See In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The critical issue is which parent will do better in raising the child; gender is irrelevant, and neither parent has a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct.App. 1996).
In determining which parent should receive Sydney's physical care we consider a number of relevant factors, including Sydney's needs and characteristics, and Jason's and Kimberly's abilities to meet those needs and support each other's relationship with Sydney. See Iowa Code § 598.41 (2003); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). While physical stability is an important consideration, great emphasis is placed on achieving emotional stability for the child. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). We also give careful consideration to allowing a child to remain with the primary caregiver. In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995).
Here, we note that both Jason and Kimberly are loving and involved parents, and both are capable of nurturing and caring for Sydney. Each has a suitable home environment, and the benefit of support from their extended family. In addition, both parties were significantly involved in Sydney's physical care. However, we agree with the district court that it was Kimberly who was the primary caregiver.
Although Jason typically cared for Sydney on the weekdays when he was off duty, he also took advantage of that time to engage in recreational and social activities. Kimberly was the parent who took primary responsibility for things such as Sydney's medical needs, and who emphasized spending time with Sydney over her work obligations. As a result, Sydney is extremely bonded with her mother. There is also evidence that, while Kimberly has generally attempted to work with Jason and support his relationship with Sydney, Jason has on occasion placed his own needs and convenience over fostering Kimberly and Sydney's relationship.
Perhaps most important, however, is the credible evidence that the temporary care schedule was disruptive for Sydney. If Jason were awarded physical care, his work schedule would require that another individual, be it Kimberly or a family member of Jason's, care for Sydney every third day. This would be, in effect, a continuation of the temporary shared care arrangement the parties participated in prior to trial. In contrast, placing physical care with Kimberly provides security and stability in Sydney's young life.
In light of all the foregoing, we agree with the district court's decision to place Sydney's physical care with Kimberly. However, we also agree with Jason that the visitation provisions of the decree must be modified to better ensure maximum continuing contact between Jason and Sydney, a primary goal of visitation being to "assure the child the opportunity for the maximum continuing physical and emotional contact with both parents. . . ." See Iowa Code § 598.41(1).
In setting the current minimum visitation schedule, the district court noted that the priority must be Sydney's best interests, and not Jason's needs. We agree, see In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994), provided the schedule maximizes Sydney's contact not just with Kimberly but also with Jason. See Iowa Code § 598.41(1)(a) (stating that insofar as is reasonable and in the child's best interest the court shall order custody and visitation "which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents. . . ."). We also agree that the amount of visitation awarded by the district court is adequate to assure Sydney maximum continuing contact with Jason, if Jason were able to exercise it. However, because the current visitation schedule makes no allowance for Jason's work schedule, if the parties are unable to agree to visitation Jason will be unable to exercise visitation on several of his assigned weekends and weeknights. Such an arbitrary and avoidable reduction in the amount of visitation is not in Sydney's best interests.
Accordingly, we eliminate the provision that awards Jason visitation on alternating weekends, and instead award him consecutive, two-day visitation as follows. Looking to Jason's three week, twenty-one day rotating schedule as laid out in temporary shared care order, Jason is off duty during the third week on the twentieth and twenty-first days, a Saturday and a Sunday. Jason should receive visitation on these two days every third week. In addition, during the second week of Jason's schedule, he is off duty on Monday and Tuesday, the eighth and ninth days of his twenty-one day schedule, and he is off duty on Thursday and Friday, the eleventh and twelfth days of the schedule. Until Sydney enrolls in kindergarten, Jason should also receive visitation on one of these two-day periods every third week, with the particular two-day period to be agreed upon by the parties. Once Sydney begins kindergarten, instead of visitation on this Monday and Tuesday or Thursday and Friday Jason should receive visitation during the first week of his schedule, from after school on the fifth day, Friday, until the start of his shift on the seventh day, Sunday.
The remainder of the district court's visitation schedule is affirmed. However, we note that this schedule applies only if the parties cannot otherwise agree to a visitation schedule. The parties are encouraged to agree to a schedule that fairly ensures maximum continuing contact between Jason and Sydney, but also ensures Sydney the stability that she needs.
Because we have not altered the award of physical care, or substantially increased the amount of Jason's visitation, we need not review the child support award.
IV. Property Division.
Finally, Jason asserts that it was inequitable for the district court to award Kimberly a $5,000 equalization payment. In reviewing the district court's property division, we note that the partners to a marriage are entitled to a just share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). Iowa courts do not require an equal or percentage division. Id. The determining factor is what is fair and equitable in each circumstance. Id.
Here the district court's division of assets, which was stipulated to in most respects by Jason, resulted in Kimberly receiving approximately $4,500 more than Jason in property upon which the trial court placed values. The court's decision appeared to be influenced, at least in part, by a desire to compensate Kimberly for a portion of the value of the cattle business. It is proper to consider the business in making the overall property division, as premarital assets are not automatically set aside to the one bringing the asset to the marriage. See In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct.App. 1996). However, the impact this asset has on the overall division depends upon the particular circumstance of this case. Id.
Here, the parties failed to place a value on the asset, and the court could not arrive at a value for the business. Moreover, the parties' tax returns indicate that the net income generated by the business decreased, rather than increased, during the marriage. Given the foregoing, as well as the fact that before dividing remaining assets and debts the court allocated to Jason the responsibility for his premarital debt, awarding Jason the cattle business does not justify the $5,000 equalization payment. Accordingly, we reduce the equalization payment to $2,700, which results in a roughly equal net award to each party. Having considered all of Jason's arguments regarding the property division, whether or not specifically discussed in this opinion, we conclude the division, as modified in this opinion, is fair and equitable under the circumstances.
The parties' 2000 tax return showed a net profit of $2,347 from the cattle business, the 2001 return showed a net loss of $827, the 2002 return showed a net loss of $1,212, and the 2003 return showed a net profit of $612.
V. Attorney Fees.
Kimberly seeks attorneys' fees on appeal. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Upon due consideration of these factors, we award Kimberly $2,000 in appellate attorney fees. Costs of the appeal are assessed one half to each party.