Opinion
No. 3-325 / 02-1323.
Filed July 23, 2003.
Appeal from the Iowa District Court for Appanoose County, Richard J. Vogel, Judge.
Petitioner appeals and respondent cross-appeals from the order dissolving their marriage. AFFIRMED AS MODIFIED.
Becky Knutson of Davis, Brown, Koehn, Shors Roberts, P.C., Des Moines, for appellant.
Gregory Milani of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Denny Drake appeals and Jeri Drake cross-appeals from the property distribution, support, and child custody provisions of the order dissolving their marriage. We affirm as modified.
I. Background Facts and Proceedings.
Denny and Jeri were married on June 2, 1984, when Denny was twenty-one and Jeri was nineteen. Neither party had substantial assets at the time of the marriage, and Denny began farming while Jeri worked at a fabric store. However, after their first child, Riley, was born in 1988, Jeri ceased working outside of the home. They would eventually have five more children, ranging in age from fifteen to one year at the time of trial. They would also later purchase a farm near Centerville, Iowa, where the family's primary farming business was raising registered Simmental cattle.
On August 13, 2001, Denny filed a petition to dissolve the parties' marriage. Following a trial, the court granted the petition and dissolved the marriage. The decree ordered joint legal custody of the children and named Jeri their primary physical caretaker. Denny was awarded all of the farmland, the house, and the cattle, but the court ordered him to pay all of the parties' debts and to pay a series of cash installments to Jeri. Denny appeals and Jeri cross-appeals from various provisions of the decree. Other relevant provisions of the decree will be discussed as necessary.
II. Standard of Review.
Our review is de novo. In re Marriage of White, 537 N.W.2d 744, 746 (Iowa 1995). This court is required to examine the record in its entirety and adjudicate the issues presented by the parties based on that record. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993). We give weight to the trial court's findings but are not bound by them. In re Marriage of Geil, 509 N.W.2d 738, 740 (Iowa 1993). Precedent is of little value as our determination must depend on the facts of the particular case. In re Marriage of Sparks, 323 N.W.2d 264, 265 (Iowa Ct.App. 1982).
III. Denny's Appeal.
Denny challenges the visitation, child support, and property valuation and distribution portions of the dissolution decree.
A. Visitation. As noted, the district court granted the parties joint legal custody of the six children, and ordered that Jeri assume their physical care. It further granted Denny "liberal visitation" to be no less than late Wednesday afternoons through Saturday evenings on alternate weeks. The court also granted him three two-week visitations during the summer and alternate holiday visitations, but it did not set forth a specific holiday visitation schedule, instead allowing the parties to mutually determine such a schedule. On appeal, Denny maintains he should have been granted additional visitation periods, and this court should specify a holiday visitation schedule, rather than leaving it to the discretion of the parties.
In establishing visitation rights, our governing consideration is the best interests of the children. In re Marriage of Deierling, 421 N.W.2d 168, 171 (Iowa Ct.App. 1988). Generally, liberal visitation rights are in the children's best interest. In re Marriage of Kerber, 433 N.W.2d 53, 54 (Iowa Ct.App. 1988). We look to the factors set forth in Iowa Code section 598.41(3) (2001) to determine an appropriate visitation arrangement.
Prior to trial, Tom Lazio conducted a home study related to the issues of child care and visitation. In a written report he recommended that Jeri be the primary caretaker, and that Denny have a visitation schedule running from Wednesday afternoon until Saturday evening. However, at trial he clarified that his recommendation was that Denny receive such visitation only on alternate weeks. Denny now maintains he should have been granted visitation in accordance with Lazio's original written recommendations.
On our de novo review, we are concerned the current visitation schedule does not allow Denny to exercise any full weekends of visitation with the children. We believe it is in the best interests of the children to allow them contact with their father over uninterrupted weekends. We therefore modify the visitation schedule and order that Denny shall have the children from 4:00 p.m. on Thursday to Sunday at 6:00 p.m. on alternate weeks.
Moreover, we believe it is in the best interests of the parties and the children to grant an explicit list of holiday visitations. For visitation purposes, holidays shall include New Year's Day, Easter, Memorial Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve, and Christmas Day. In odd numbered years, Denny shall have visitation on New Year's Day, Memorial Day, Labor Day, and Christmas Eve. In the even numbered years, Denny shall have visitation on Easter, July 4th, Thanksgiving, and Christmas Day. In addition he shall have visitation on Father's Day and his birthday every year. Visitation shall be from 8:00 a.m. until 7:00 p.m. in each instance unless otherwise agreed by the parties.
B. Child Support. Denny maintains the court improperly calculated the child support obligation in this case. In determining the amount, the district court found it appropriate to "average and approximate" Denny's income in that he is self-employed and his farm income and expenses vary from year to year. In doing so, the court arrived at a figure of $48,000 as Denny's annual income.
On appeal, as he did below, Denny contends his income for 2000 should be excluded from the computation because it was unusually high and unlikely to be repeated. He also argues his income should be averaged over a five-year period. Like the district court, however, we disagree on both accounts. Farm income fluctuates from year to year and is hard to predict. We have therefore approved of income averaging to avoid calculation on the high or low ends of such fluctuation. See In re Marriage of Cossel, 487 N.W.2d 679, 683 (Iowa Ct.App. 1992) (authorizing the average method of calculating income to determine the child support obligations of a farmer). We find no error in the district court's inclusion of a comparatively high income year with lower income years in arriving at an appropriate mean for purposes of calculating Denny's income and child support obligation. We note the monthly support ordered by the court fell between the amount requested by Jeri and that recommended by Denny. We find no inequity in the district court's child support determination and therefore affirm on this issue.
C. Property Valuation and Division. The court awarded all farm assets to Denny and ordered him to assume all debts of the farm operation. In addition, the decree required Denny to make payments to Jeri totaling $118,000, which included one payment of $50,000 and four subsequent annual payments of $17,000 as part of the property division. Denny contends the district court erred in its valuation of the parties' assets and, resultantly, in the amount Denny must pay to Jeri to achieve an equitable property division. Jeri counters that the district court under-valued the property, and she urges us to modify the decree to require Denny to pay her an additional $27,225.
The assets and liabilities should be equitably, not necessarily equally, divided after considering the criteria delineated in Iowa Code section 598.21(1). See In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa Ct.App. 1997). In general, the division of property is based upon each marriage partner's right to a just and equitable share of the property accumulated as a result of their joint efforts. In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981).
Upon our de novo review of the record, we conclude the trial court made an equitable division of the assets of the marriage. The parties rigorously dispute the district court's valuation of the cattle. Denny's expert witness valued the cattle at $212,025, while Jeri's expert valued them at $292,444. The court found the value of the cattle, livestock semen, and embryos to be $250,000. We find the court's valuation reasonable, in that it accounts for the differing expert assessments and takes into account the unusual number of "open cows." In addition, we find the remainder of the court's valuation and division of assets to be equitable, and accordingly leave them undisturbed. We therefore deny Jeri's request for an additional payment of $27,225.
IV. Jeri's Cross-Appeal.
A. Life Insurance Policy. In her cross-appeal, Jeri asks this court to amend the district court's ruling to require Denny to maintain a $500,000 life insurance policy on his life, naming Jeri as the beneficiary until he is no longer obligated to pay child support. In equity matters it is our responsibility to determine from the credible evidence rights anew on those propositions properly presented, provided the issue has been raised and error, if any, preserved in the trial proceedings. In re Marriage of Hitchcock, 265 N.W.2d 599, 606 (Iowa 1978). We conclude this issue in not "properly presented' in that error was not preserved below. The court's ruling did not address this request, and Jeri did not file a subsequent motion asking that it be taken up. We therefore decline to address it.
B. Alimony. Jeri contends the court erred in failing to award her alimony, and requests an award of $500 per month. Alimony is an allowance to the former spouse in lieu of a legal obligation to support that person. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct.App. 1997). When determining the appropriateness of alimony, we consider: (1) the earning capacity of each party; and (2) present standards of living and ability to pay balanced against the relative needs of the other. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct.App. 1997). Alimony is not an absolute right; instead, an award depends upon the circumstances of each particular case. Gonzalez, 561 N.W.2d at 99. Many factors are considered in determining the appropriate amount of alimony to be awarded to a spouse. Iowa Code § 598.21(3); In re Marriage of Siglin, 555 N.W.2d 846, 850 (Iowa Ct.App. 1996). We conclude the court properly denied Jeri's request for alimony. We first note the court granted Jeri a substantial property award, including $50,000 payable following the entry of the decree, and four subsequent annual installment payments of $17,000. Moreover, she was granted a substantial portion of the parties' personal property, which we leave undisturbed on appeal. These provisions of the decree argue against awarding alimony. See In re Marriage of Dahl, 418 N.W.2d 358, 359 (Iowa Ct.App. 1987) ("Property division and alimony must be considered together in evaluating their individual sufficiency."). In addition, Jeri will receive a sizeable child support award for the foreseeable future. Denny's obligation to pay the substantial debts incurred by the parties during the marriage also weighs against an alimony award. We conclude an award of alimony would be unduly burdensome, perhaps crushing, to Denny's financial viability.
C. Attorney Fees. Jeri requests an award of appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct.App. 1994). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Roberts, 545 N.W.2d 340, 345 (Iowa Ct.App. 1996). In consideration of these factors, we award no attorney fees. Costs on appeal shall be divided equally between the parties.