Opinion
No. 2-1043 / 02-0853.
Filed February 28, 2003.
Appeal from the Iowa District Court for Linn County, David S. Good, Judge.
Respondent appeals, and Petitioner cross-appeals, from the provisions of their dissolution decree. AFFIRMED AS MODIFIED.
John Wagner and Jeffrey Ritchie of John C. Wagner Law Offices, P.C., Amana, for appellant.
Carolyn Beyer of White Johnson, P.C., Cedar Rapids, for appellee.
Heard by Vogel, P.J., and Miller and Eisenhauer, JJ.
Diane Wilkins appeals, and Brian Wilkins cross-appeals, from the provisions of their dissolution decree. Diane contends the district court erred in denying her request for physical care of the children, in dividing property she owned prior to the marriage, and in refusing to award her rehabilitative alimony. She also requests an award of appellate attorney fees. On cross-appeal, Brian claims he is entitled to physical care of the children uninterrupted by visitation every Friday and for one week each year. He also seeks appellate attorney fees. We affirm as modified.
I. Background Facts and Proceedings. Brian and Diane were married in July 1999. It was Brian's third marriage and Diane's second. Diane has physical care of a ten-year-old son, Zach, from her first marriage.
Shortly after the parties married, Diane became pregnant with twins. The twin boys, Kyle and Curtis, were prematurely born in May 2000. Kyle was born with a heart defect that may require surgery in the future.
Brian is an employee of Ace Refrigeration, and earned approximately $75,000 in 2000. Diane was employed as an administrative assistant at Bradley Riley law firm, but quit prior to the marriage. At the time of trial, Diane was staying at home to care for her children.
During the marriage, both Brian and Diane smoked cigarettes. During the divorce proceedings, Brian discovered he had stage II lymphoma of the neck and chest. He was treated with chemotherapy and is in remission. Brian quit smoking upon being diagnosed with cancer. Diane continues to smoke.
In September 2000, Diane attempted suicide. She took at least thirty and possibly eighty pills of three prescription drugs.
Prior to the marriage, the parties entered into an antenuptial agreement concerning real estate in Shueyville, Iowa. Diane owned the property with her mother. The antenuptial agreement provided that the real estate was reserved to Diane. Shortly after the marriage, the Shueyville property was sold and Diane's mother paid Diane $16,225 for her part interest in the property. The funds were placed in a joint checking account along with funds Brian brought into the marriage. The parties used $30,000 for a down payment on a home. After the divorce proceedings began, the home was sold and approximately $32,000 was placed in escrow.
In its decree, the district court granted the parties joint legal custody of the twins, and awarded physical care to Brian. The court also awarded the parties one half of the proceeds and interest from the sale of their home. Both parties filed motions pursuant to Iowa Rule of Civil Procedure 1.904(2) seeking to enlarge or amend the district court's order. Diane also filed an application for order nunc pro tunc. The district court filed an order amending the decree, but denying Diane's request for physical care of the children.
II. Scope of Review. We review dissolution decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. Id. 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. Id. at 51.
III. Physical Care. Diane first contends the district court erred in granting Brian primary physical care of the children.
The best interest of the children is our standard for deciding child custody. Iowa R.App.P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). Our objective is to place the children in the environment most likely to bring them to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683. In considering what custody arrangement is in the best interest of the children, we consider statutory factors. Iowa Code § 598.41(3) (1999). All these factors bear upon the "first and governing consideration" as to what will be in the best long-term interest of the child. In re Marriage of Vrban, 359 N.W.2d 420, 424 (Iowa 1984). These statutory factors and the factors identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), are appropriately considered in determining the award of physical care. In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).
In its order granting Brian physical care of the children, the district court specifically outlined the factors set forth in Marriage of Winter, and made findings in regard to whom each factor weighed in favor. The court based its decision in part on the fact that Diane was still smoking. Diane argues the court failed to consider the consequences of granting Brian physical care, which necessitates putting the children in daycare. Diane emphasizes that the children's pediatricians believe it would be better if the children were not placed in daycare, and that the daycare environment could exacerbate ear infections or wheezing difficulties. However, the children are being provided childcare in a family daycare setting with only two other children. The children's pediatric cardiologist testified his opinion would change if he knew the children were in daycare with only two other children. Meanwhile, doctors who have treated the children testified that cigarette smoke increases the incidence of ear infection, as well as upper respiratory infections.
Diane also argues the district court failed to consider Brian's difficulties with anger management and his history of domestic abuse. Diane cites to several incidents involving Brian's ex-wives and former girlfriends she argues shows Brian's abusive nature. One former girlfriend testified that Brian has called her names occasionally when they argued. She also testified that when she was very drunk one night, she provoked a fight with Brian and sustained a bloody nose during a physical altercation in which they were both pushing each other, although she does not recall exactly what occurred. This woman did not consider Brian an abusive boyfriend. A former girlfriend who dated Brian for three years estimated that she and Brian had been involved in "shoving wrestling type of contact" five times. She testified that she usually instigated the physical contact. Although this girlfriend testified that Brian had displayed a bad temper at times, she did not consider Brian an abusive person. Diane also references a protective order his second wife entered against him. Brian alleges his second wife made domestic abuse allegations against him to have him removed from his home.
At trial, Diane's ten-year-old son, Zach, testified that on one occasion he had his feet up in the car and Brian struck his feet "[h]ard enough that I could feel it." Diane testified that Brian called her names and was verbally abusive to her during the marriage. Diane also cites to incidents of alleged physical abuse during the marriage. Brian testified that on one occasion, he caused her arm to be injured when he was running away from her. Brian testified that they were both running down the stairs and Diane grabbed the railing on the side of the stairs he was coming down, causing him to hit her arm. As a result, Diane fell. Diane told the deputy sheriff who investigated the incident that she did not believe Brian intentionally tried to hurt her. The deputy testified that she was uncertain as to whether domestic abuse had occurred, so she referred the incident to the county attorney's office. No charges were filed. Finally, Brian testified that on another occasion Diane became enraged upon discovering a Playboy magazine in his truck. Brian claimed Diane threw the magazine in his face. He admits that, in response, he threw the magazine back at her, hitting her in the back of the head and neck. This incident was never reported.
A history of domestic abuse by one parent is a factor in making child custody determinations under Iowa Code section 598.41(3)(j). In assessing what is sufficient to constitute a history of domestic abuse, we weigh the evidence of abuse, its nature, severity, repetition, and to whom directed, not just count the number of incidents. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). The district court considered the evidence presented and concluded the best interest of the children dictated Brian be granted physical care. We concur. There is no evidence that Brian is abusive to his children. Although Diane has made domestic abuse allegations against Brian, Brian has alleged to his pastor that Diane has abused him.
Other factors weigh in favor of granting Brian physical care. Although Diane tries to minimize the seriousness of her suicide attempt, we find it did not appear to be "staged." Brian has shown an ability to consistently minister to the children's needs. We affirm the court's order granting Brian physical care of the children.
IV. Property Division. Diane next contends the district court erred in awarding Brian one-half of the proceeds from the sale of their home. She claims the down payment on the home was made from the proceeds of the Shueyville property, which was governed by an antenuptial agreement and was therefore not subject to equitable division by the court.
Iowa Code section 598.21(1) sets forth the factors the district court is to consider when dividing property. These factors include the length of the marriage, the property brought to the marriage by each party, and the provisions of an antenuptial agreement. Iowa Code sections 598.21(1)( a), ( b),( l). The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id.
As with any contract, a party to an antenuptial agreement may abandon such an agreement. In re Marriage of Pillard, 448 N.W.2d 714, 715 (Iowa Ct.App. 1989). Where there is no express agreement to abandon an antenuptial agreement, the court must look to see if the parties engaged in a course of conduct that evidences their desire to unequivocally and decisively abandon the terms of the agreement. Id. The district court found the funds Diane received from the Shueyville property were commingled, and treated them as a marital asset. We agree.
Each party brought approximately the same amount of assets into the marriage. Brian brought into the marriage a $5,222.50 savings account, $10,599.34 in proceeds from the sale of vehicles and stock, and $13,683.09 in proceeds from the sale of his condominium. Diane brought into the marriage $15,836.96 annuity, her interest in the Shueyville property, and a $727.60 savings account. The Shueyville property was sold soon after the marriage and Diane received as her share $16,225.00. All of these funds were deposited into a checking account originally held in Brian's name, to which Diane's name was added. From this account, the parties placed a $30,000 down payment on a home. From this record, it appears Diane chose to treat the proceeds from the sale of the Shueyville property as shared property. Therefore, we affirm the district court's treatment of the funds from the sale. The district court's division of the property was equitable and shall stand.
V. Alimony. Diane argues she is entitled to reimbursement alimony in the amount of $500 per month for two years. She claims alimony is necessary to reimburse her for staying home with the children, which enabled Brian to work substantial overtime and travel as part of his job.
Alimony is not an absolute right. In re Marriage of Dieger, 584 N.W.2d 567,570 (Iowa Ct.App. 1998). Instead, an award of alimony depends on the circumstances of each particular case. Id. When determining the appropriateness of alimony, the court must consider the length of marriage, the age and health of the parties, and the distribution of property. Iowa Code § 598.21(3)( a) — ( c). Other factors to consider include the educational level of the parties, earning capacity, and the feasibility of the party seeking maintenance to become self supporting. Iowa Code § 598.21(3)( d) — ( f). Reimbursement alimony is based upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other spouse. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999).
We find the district court did not err in denying Diane's claim for alimony. The parties had been married a short period of time. Diane is healthy and is able to work. Her earning capacity was not injured by her relatively short period of unemployment. There is no evidence that Diane's actions in staying home to raise the children directly enhanced Brian's future earning capacity. Accordingly, we affirm the district court's order denying spousal support.
VI. Visitation. On cross-appeal, Brian contends visitation should be changed to allow Diane visitation with the children every other Friday night instead of every Friday night. He also contends visitation should be changed to allow him one week per year to vacation with the children uninterrupted by Diane's routine visitation.
In establishing visitation rights, our governing consideration is the best interest of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation is in a child's best interest as it maximizes physical and emotional contact with both parents. See Iowa Code § 598.41(1)( a) (1999).
In its amended order, the district court granted Diane visitation "every Wednesday night from 5 p.m. until 8 a.m. Thursday morning and every Friday from 5 p.m. until 8 p.m. In addition, Diane shall have every other weekend from 5 p.m. on Friday to Sunday night at 6 p.m." As Brian notes, allowing Diane visitation every Friday night prevents him from spending an entire weekend with the children. We modify the visitation schedule to eliminate Diane's visitation every Friday from 5 p.m. until 8 p.m. Diane shall continue to have visitation every other weekend from 5 p.m. Friday until 6 p.m. Sunday.
Additionally, Diane was granted visitation for three non-consecutive weeks during the summer. Because Diane has overnight visitation every Wednesday, Brian is not afforded the same ability to vacation with the children. Accordingly, we modify the visitation schedule to allow Brian one week with the children uninterrupted by Diane's Wednesday visitation with notice of the week to be given by May 3 of each year.
VII. Appellate Attorney Fees. Finally, Diane and Brian each request an award of appellate attorney fees. Attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). We decline to award appellate attorney fees.