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In re Marriage of Metz

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)

Opinion

No. 5-600 / 04-0926

Filed October 26, 2005

Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.

Candace Metz appeals and Timothy Metz cross-appeals the decree issued by the district court dissolving their marriage. AFFIRMED.

Nan Tiernan of The Nan Tiernan Law Firm, P.L.C., Des Moines, for appellant/cross-appellee.

Dennis Bjorkland and Charles Hallberg of Bjorklund Law Firm, L.L.C., Coralville, for the appellee, cross-appellant.

Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.


Candace Metz appeals and Timothy Metz cross-appeals the decree issued by the district court dissolving their marriage. Candace appeals the following aspects of the decree: (1) custody of Carolyn Metz and guardianship of Dallas Carroll; (2) visitation with Carolyn and Dallas; (3) rehabilitative alimony; and (4) the dependant tax exemption for Carolyn. Timothy cross-appeals the portion of the decree granting Candace unsupervised visitation with Carolyn and also requests attorney fees on appeal. We affirm.

Background Facts and Proceedings.

Candace and Timothy were married on March 19, 1983. They have two children, Andrew (born December 1984) and Carolyn (born October 1990) and also served as co-guardians to Dallas Carroll (born January 1995). Candace was 48 years old at the time of trial and has advanced degrees, including a doctorate in veterinary medicine and a master's in veterinary microbiology and preventative medicine. Timothy was 47 years old at the time of trial and holds master's degrees in agronomy and community and regional planning. Candace worked both before and during the marriage but left the job market in 1993 to be home with the children. Timothy has worked full-time since 1989 at the Iowa Department of Economic Development, with an income of $59,000 per year at the time of trial. Candace was seeking full-time employment at the time of trial, and the district court accorded her the ability to earn a gross annual income of approximately $25,000. At the time of trial, Timothy resided with Andrew and Dallas in Ames, Iowa, and Candace and Carolyn resided in Indianapolis, Indiana.

Andrew was a full time college student at the time of trial, and no issue is raised directly regarding him.

The custody of Carolyn was a central concern during the dissolution proceedings. Carolyn was age 13 at the time of trial and a gifted individual both athletically and academically. Carolyn has pursued advanced training in figure skating from the age of four and is also academically advanced for her age. Both Timothy and Candace approved of and supported Carolyn's participation in figure skating during the marriage. As mutually agreed, Candace moved with Carolyn in 2001 to Indianapolis, Indiana, to enroll Carolyn at the World Skating Academy. Andrew and Dallas remained in Ames with Timothy, and Timothy and Dallas would travel every month to six weeks to visit Candace and Carolyn. Carolyn experienced several injuries between January 2003 and the time of trial, which resulted in her engaging in very little, if any, figure skating.

Sometime between 2001 and April 2003, Timothy and Candace's marital relationship began to breakdown. Timothy filed for dissolution in early April 2003, and the parties remained residing in their previous arrangements. Timothy and Candace experienced some difficulties communicating with each other, including difficulty agreeing on visitation with Carolyn and Dallas. Trial commenced in December 2003. Each party presented evidence, including the testimony and written report of Dr. Arthur H. Konar, Ph.D., a licensed psychologist and expert custody evaluator. The district court issued the dissolution decree on March 26, 2004. After its thorough and thoughtful consideration of the unusual facts of this case, the district court granted Timothy sole legal custody of Carolyn and sole guardianship of Dallas. The district court also granted Timothy the option to claim Carolyn as his dependent on his Iowa and Federal income tax returns, beginning for tax year 2003. Candace was granted a two-tiered, unsupervised visitation schedule with Carolyn, depending on her in-state or out-of-state residence, but was denied her request for rehabilitative alimony. Candace appeals and Timothy cross-appeals certain portions of the district court's decree.

I. Scope of Review.

Dissolution of marriage decrees are tried in equity. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). Our standard of review is therefore de novo. Iowa R. App. P. 4. In such cases, "[w]e examine the entire record and adjudicate anew rights on the issues properly presented." In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 14( f)(7); In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998).

II. Custody and Visitation.

Candace appeals the district court's grant of (1) sole legal custody of Carolyn to Timothy, and (2) sole guardianship of Dallas to Timothy. Candace also asserts that the district court failed to address telephone and email contact with Carolyn. Timothy cross-appeals the decree's grant of unsupervised visitation between Candace and Carolyn.

A. Carolyn.

The primary issue in this case has been Carolyn's custody. While joint custody is preferred by the law, the child's best interests are the guiding force of the court's determination on custody and physical care. See Iowa Code § 598.41 (2003). When carefully weighing the facts and evidence, the district court afforded great credence to the testimony and written report of Dr. Konar, the agreed-upon expert custody evaluator. Dr. Konar's findings recommended Carolyn's sole legal custody be granted to Timothy, with supervised visitation allowed to Candace. The district court's findings and conclusions were clearly based on an analysis of Carolyn's best interests, including her psychological and emotional needs. The district court declined to grant joint legal custody as the parties' lack of communication and flexibility made the situation unworkable:

The district court was careful to note that its decisions on custody of both Carolyn and Dallas were not intended to reward or punish either parent, recognizing that both Timothy and Candace love their children and Dallas. However, the court also pointed out that both parents contributed negatively to the existing circumstances.

An award of joint custody would be contrary to Carolyn's best interest. Clear and convincing evidence, as recited above, supports these conclusions. That evidence shows that (a) Carolyn's psychological and emotional development will be hindered by a joint custody arrangement, (b) her parents have essentially no ability to communicate reasonably about her needs, (c) Candace is unwilling or unable to support Timothy's relationship with Carolyn, and (d) Timothy opposes joint custody. Further undermining an award of joint custody is the uncertainty about where Candace will live after entry of this decree. The record did not show whether she will return to Iowa or make good on her previous threat to leave the entire family.

As the district court was in the best position to weight the evidence and credibility of the parties and witnesses, we give its findings deference but are not bound by them. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). The district court was greatly concerned about Carolyn's psychological and emotional health if Candace were granted joint legal custody. The court's findings, and especially evidence presented by Dr. Konar, document the emotional and psychological strain between Candace and Carolyn. Although Candace calls into question Dr. Konar's credentials, she did not challenge his credentials during his testimony at trial, and we defer to the district court in weighing the testimony of witnesses. Beecher, 582 N.W.2d at 512-13. We agree with the district court's decision that it is in Carolyn's best interests to remain in the sole legal custody of Timothy. We affirm on these issues. Timothy contends that Candace should be limited to supervised visitation with Carolyn, per Dr. Konar's recommendation. The district court noted that Dr. Konar's primary concern was Carolyn's emotional health rather than her physical safety. The court found that emotional stress could only be avoided in this situation by a fundamental change in the relationship of Candace and Carolyn, not the presence of a third-party supervisor. We likewise agree with the district court's decision to allow unsupervised visitation between Candace and Carolyn. We affirm the decree as to this issue and on the visitation provided in the decree.

Candace also appeals the district court's failure to enter an order specifying contact by phone and/or e-mail with Carolyn. The decree provides for "contact" as mutually agreed by the parties. While it may well be in Carolyn's best interests for Timothy not to hinder this type of contact, we will not address the issue on appeal. Candace did not file a rule 1.904(2) motion to enlarge the findings specifically regarding phone and email contact, thereby failing to preserve the issue on appeal.

B. Dallas.

Candace also appeals the district court's decision granting Timothy sole guardianship of Dallas. Dallas, Candace's biological great nephew, began living with Timothy and Candace in 1995 when he was four months old. Timothy and Candace have had co-guardianship of Dallas and have been his de facto parents most of his life. When Candace and Carolyn moved in 2001 to Indianapolis, Timothy assumed almost total care for Dallas, while Candace's relationship with him, according to the district court, "essentially evaporated." The court noted that Dallas's mother, Jessica Grimstad, wants Dallas to continue living with Timothy, which the court found would be in Dallas's best interests. We concur with the district court and affirm its grant of sole guardianship of Dallas with Timothy.

III. Alimony.

Candace also contends that the district court erred in failing to award her rehabilitative alimony. Alimony is not an absolute right, and an award thereof depends upon the circumstances of a particular case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996). At the time of trial, Timothy had an annual gross income of approximately $59,000. Candace was seeking full-time employment, and the district court accorded her the current ability to earn an annual income of $25,000. Although Candace had been out of the job market for about ten years preceding trial, she has two advanced degrees including a doctorate of veterinary medicine and a master's in veterinary microbiology and preventative medicine. By her own testimony she could enter the job market at somewhere between $25,000 and $29,000. Candace sought rehabilitative alimony of $500 per month for two years in the dissolution to fund her retraining for the job market. The district court made the following findings:

[Candace] has not, however, identified the nature of the proposed retraining, its cost, its duration, or even its necessity . . . . . Candace has two advanced degrees, one of which was obtained during the parties' marriage. . . . Timothy will now have the primary financial responsibility for Carolyn and Dallas. . . . Timothy will also be obligated to pay Candace a significant amount of money as a property settlement. Candace will be paying only a modest amount of child support for Carolyn. Given all of the prevailing circumstances, the Court concludes that Candace's request for alimony should be denied.

We find that the district court's denial of rehabilitative alimony to Candace achieved equity between the parties. Even though Candace spent a considerable amount of the last few years out of the workforce, the district court found, and we concur, Candace has the education and abilities to advance in her field of veterinary medicine. As the district court found, to award Candace alimony in the parties' circumstances at the time of trial would result in financial inequity to Timothy. We therefore affirm the district court's denial of alimony to Candace.

IV. Dependent Tax Exemption.

Candace finally asserts error in the district court's decree for failing to grant Candace the ability to claim Carolyn as a dependant on her income tax returns, at least in alternating years with Timothy. Although Iowa law allows the district court the ability to grant the dependant exemption to a non-custodial parent not otherwise eligible under federal law, it must be to achieve an equitable result of the economic issues presented. In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996). According to the provisions of the dissolution decree, Carolyn pays $360 per month in child support and has at most the standard "every other weekend and holiday" visitation schedule should she move back to Iowa. To allow Candace to take the dependent exemption for Carolyn every other year would result in inequity to Timothy, as Candace provides minimal support for Carolyn. We affirm the provision of the dissolution decree granting Timothy the sole option of claiming Carolyn's as his dependent on his state and federal income tax returns.

See 26 U.S.C. 152(e) (2004).

V. Attorney's Fees on Appeal.

Finally, Timothy requests attorney's fees on appeal. An award of attorney's fees is not a matter of right but rests within the discretion of the court. In re Benson, 545 N.W.2d at 258 . The court considers the financial positions of the parties and whether the party making the request was obligated to defend the trial court's decision on appeal. Id. We award Timothy $1000.00 for appellate attorney's fees, and the costs of this appeal are assessed to Candace.

AFFIRMED.


Summaries of

In re Marriage of Metz

Court of Appeals of Iowa
Oct 26, 2005
707 N.W.2d 337 (Iowa Ct. App. 2005)
Case details for

In re Marriage of Metz

Case Details

Full title:IN RE THE MARRIAGE OF TIMOTHY L. METZ and CANDACE ANN METZ. Upon the…

Court:Court of Appeals of Iowa

Date published: Oct 26, 2005

Citations

707 N.W.2d 337 (Iowa Ct. App. 2005)