in-re-the-marriage-of-alicia-r-williams-and-justin-williams-upon-the ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 4-028 / 13-0566
Filed February 19, 2014
IN RE THE MARRIAGE OF ALICIA R. WILLIAMS
AND JUSTIN WILLIAMS
Upon the Petition of
ALICIA R. WILLIAMS,
Petitioner-Appellant/Cross-Appellee,
And Concerning
JUSTIN WILLIAMS,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,
Judge.
A wife appeals and a husband cross-appeals the decree dissolving their
marriage raising issues of child custody and property distribution. AFFIRMED.
Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West
Des Moines, for appellant/cross-appellee.
Susan L. Ekstrom of Elverson, Vasey & Peterson, Des Moines, for
appellee/cross-appellant.
Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.
Alicia Williams appeals, and Justin Williams cross-appeals, the decree
dissolving their marriage. Alicia claims the district court should have given her
physical care of the parties’ children and should have stricken or disregarded the
custody evaluator’s report. Justin, on cross-appeal, claims the district court
should have awarded him one-half of Alicia’s 401(k) account. He also seeks
appellate attorney fees in this matter. After our de novo review, we affirm the
physical care and property distribution provisions of the district court’s decree.
We conclude the children’s best interests justify placing them in Justin’s physical
care, and the short-term nature of this marriage along with the rest of the
property distribution makes it equitable for Alicia to keep sole possession of her
401(k).
I. BACKGROUND FACTS AND PROCEEDINGS.
Alicia and Justin were married in December 2009, after finding out they
were expecting their first child. Their first son was born in May 2010. After their
relationship turned rocky, Alicia filed to dissolve the marriage in March of 2012.
A few days after filing, the parties got in a heated altercation, and Alicia called the
police. Justin was arrested and charged with domestic abuse and harassment.
Justin ultimately entered an Alford plea to harassment, and the domestic abuse
charge was dropped. The court entered a no-contact order at sentencing.
Alicia also filed for relief from domestic abuse under Iowa Code chapter
236 (2011). After a hearing the court concluded Alicia had not proven that Justin
engaged in domestic abuse. Thus, the court dismissed the case.
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At the temporary hearing in the dissolution action the court granted the
parties joint legal custody of their child and placed physical care with Alicia
subject to Justin’s visitation. The court set the child support obligation and
awarded Alicia possession of the martial home, ordering Justin to contribute
toward the mortgage payment. The court also appointed a custody evaluator,
Mary Hilliard, at Justin’s request. During the pendency of the dissolution
proceeding, approximately three weeks before trial, Alicia delivered the parties’
second son.
Following a three day trial, the court issued its dissolution decree in March
2013. The court noted there were allegations of domestic abuse made against
both parties. The court however found that neither party presented a physical
threat to the other at the present time, but rather, each had used these
accusations to attempt to bolster their own position in the dissolution action.
Both parties had refused to allow the other party to see the oldest child for
several weeks during the dissolution proceeding, and both behaved in a manner
unproductive to co-parenting. Following the advice of the custody evaluator, the
court determined the parties should have joint legal custody, granted Justin
physical care, and provided Alicia a liberal amount of visitation, which amounted
to fifty percent of the overnights.1 The court required the parties to engage the
1
Alicia was granted alternating weekly visitation with Week A’s schedule being: Sunday
at 6 p.m. until Tuesday at 6 p.m. and Friday at 6 p.m. until Sunday at 6 p.m., and Week
B’s schedule being: Tuesday at 6 p.m. until Friday at 6 p.m. This schedule results in
each parent receiving seven overnights with the children every two weeks.
While the parents here had roughly equal time with the children, the court
specifically awarded physical care of the children to Justin. Our focus to determine the
nature of the physical care arrangement is on the language used by the court and not
the number of overnights each parent receives. See In re Seay, 746 N.W.2d 833, 835
(Iowa 2008) (determining the off-set method of calculating child support should be
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services of a parenting coordinator for the next twelve months and ordered Alicia
to pay child support in accordance with the support guidelines.
The court concluded the marital home had no equity and awarded it along
with its debt to Alicia. The court ordered Alicia to pay Justin $5000 for his
interest in a car she sold during the dissolution proceedings, and it ordered Alicia
to pay Justin $2000 for his portion of the 2011 tax refund she received after
taking all of the applicable deductions. These payments were to be made in
$200 per month installments over the next thirty-five months. Finally, the court
awarded each party their own retirement accounts and bank accounts, while
assigning each their separate credit card debts, all based on the short-term
nature of the marriage.
Both parties appeal.
II. SCOPE AND STANDARD OF REVIEW.
We review dissolution of marriage cases de novo as they are heard in
equity. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We
examine the entire record and adjudicate anew the issues before us, though we
give weight to the findings of the district court, especially its determinations of
credibility. Id. We will disturb a property distribution award only where there has
been a failure to do equity. Id. Our only concern in determining child custody
applied in a case where the district court awarded shared care but the parenting time
was not equal); but see In re Marriage of Fox, 559 N.W.2d 26, 29 (Iowa 1997) (refusing
to apply the off-set support calculation where the record showed the child spent one-
third of her time with the father but the parties stipulated to shared physical care
because the court concluded the time the father spent with the child did not exceed that
typically enjoyed in a liberal visitation situation); see also In re Marriage of Hynick, 727
N.W.2d 575, 579-80 (Iowa 2007) (noting the difference between shared care and
physical care with visitation and noting visitation varies widely and “can even approach
an amount almost equal to the time spent with the caretaker parent” (emphasis added)).
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and care is the best interest of the children. In re Marriage of Fennelly, 737
N.W.2d 97, 101 (Iowa 2007).
III. PHYSICAL CARE.
Alicia claims on appeal that she was the children’s primary caretaker,
particularly of Michael who was three weeks old at the time of trial, and as such,
she should be awarded physical care of both children. She admits that Justin
was a good father but claims there was substantial evidence that he controlled,
intimidated, and physically abused her, and placing the children in his physical
care is not in the children’s long-term best interests.
Our objective when deciding which parent should have physical care is to
place the children “in the environment most likely to bring them to health, both
physically and mentally, and to social maturity.” In re Marriage of Hansen, 733
N.W.2d 683, 695 (Iowa 2007). We consider the nonexclusive lists of factors
found in Iowa Code section 598.41(3)2 along with other factors found in In re
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These factors include:
a. Whether each parent would be a suitable custodian for the child.
b. Whether the psychological and emotional needs and development of
the child will suffer due to lack of active contact with and attention from
both parents.
c. Whether the parents can communicate with each other regarding the
child’s needs.
d. Whether both parents have actively cared for the child before and since
the separation.
e. Whether each parent can support the other parent’s relationship with
the child.
f. Whether the custody arrangement is in accord with the child’s wishes or
whether the child has strong opposition, taking into consideration the
child’s age and maturity.
g. Whether one or both the parents agree or are opposed to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or the other parent will
be jeopardized by the awarding of joint custody or by unsupervised or
unrestricted visitation.
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Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).3 Stability and
continuity are important factors to be considered because “the successful
caregiving by one spouse in the past is a strong predictor that future care of the
children will be of the same quality.” Hansen, 733 N.W.2d at 696–97.
In this case the court, after hearing the allegations of abuse posed by both
parties, was convinced neither party presented a physical threat to the other. We
j. Whether a history of domestic abuse, as defined in section 236.2,
exists. In determining whether a history of domestic abuse exists, the
court’s consideration shall include but is not limited to commencement of
an action pursuant to section 236.3, the issuance of a protective order
against the parent or the issuance of a court order or consent agreement
pursuant to section 236.5, the issuance of an emergency order pursuant
to section 236.6, the holding of a parent in contempt pursuant to section
664A.7, the response of a peace officer to the scene of alleged domestic
abuse or the arrest of a parent following response to a report of alleged
domestic abuse, or a conviction for domestic abuse assault pursuant to
section 708.2A.
k. Whether a parent has allowed a person custody or control of, or
unsupervised access to a child after knowing the person is required to
register or is on the sex offender registry as a sex offender under chapter
692A.
Iowa Code § 598.41(3).
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These factors include:
1. The characteristics of each child, including age, maturity, mental and
physical health.
2. The emotional, social, moral, material, and educational needs of the
child.
3. The characteristics of each parent, including age, character, stability,
mental and physical health.
4. The capacity and interest of each parent to provide for the emotional,
social, moral, material, and educational needs of the child.
5. The interpersonal relationship between the child and each parent.
6. The interpersonal relationship between the child and its siblings.
7. The effect on the child of continuing or disrupting an existing custodial
status.
8. The nature of each proposed environment, including its stability and
wholesomeness.
9. The preference of the child, if the child is of sufficient age and maturity.
10. The report and recommendation of the attorney for the child or other
independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may
disclose.
Winter, 223 N.W.2d at 166–67.
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agree. Both Justin and Alicia have historically provided care for the oldest child;
the age of the youngest at the time of the dissolution trial prevents an
assessment of the historical primary caregiver.
The court considered, and ultimately agreed with, the custody evaluator.
Alicia asserts it was improper for the court to accept and rely on this evaluation
report because Hilliard ignored several key facts that undermine her conclusion
and unfairly favored Justin. Specifically, Alicia believes the report should have
been rejected because Hilliard viewed a video taken by Justin of one of the
visitation exchanges, and this video was not provided to Alicia during discovery,
though it was specifically requested. Alicia objected to questions posed to
Hilliard about the video, which the court sustained. However, the court refused to
reject the whole report, instead stating it would take the lack of production of the
video into account as it evaluated and weighed the report.
We have reviewed Hilliard’s report and find that there was no mention of
the video Alicia complains of. While Hilliard at trial admitted to seeing the video,
it was not listed in the report as an item Hilliard reviewed, and it does not appear
to have helped form the basis of any of her opinions. It is within the court’s
discretion to admit or exclude a custody evaluator’s report from the record. In re
Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa 1996). The custody evaluator’s
recommendation is not binding on the district court or on appeal.
Based on our de novo review of the record, we agree with the district
court’s decision placing the physical care of the children with Justin. The court
noted it would have preferred to award shared physical care but could not
because of the parties’ inability to work together, their failure to foster the
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children’s relationship with the other parent, and the no-contact order that
remained in effect. The court found Justin was better able to be fair in
overseeing and consulting with Alicia on parenting issues, justifying placing
physical care, and the decision making power that entails, with Justin. Alicia’s
visitation schedule is set at fifty-percent of the time, which is indicative of the
confidence the district court had in her ability to appropriately care for the
children. We affirm the district court’s decision on physical care.
IV. RETIREMENT ACCOUNT.
In his cross-appeal, Justin claims the district court should have awarded
him fifty percent of Alicia’s 401(k). Justin asserts this is equitable in light of the
fact that Alicia was awarded the marital home without having to pay him any
equity.
Our focus in dividing martial property is to do so equitably after
considering the factors in Iowa Code section 598.21(5).4 McDermott, 827
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These factors include:
a. The length of the marriage.
b. The property brought to the marriage by each party.
c. The contribution of each party to the marriage, giving appropriate
economic value to each party’s contribution in homemaking and child
care services.
d. The age and physical and emotional health of the parties.
e. The contribution by one party to the education, training, or increased
earning power of the other.
f. The earning capacity of each party, including educational background,
training, employment skills, work experience, length of absence from the
job market, custodial responsibilities for children, and the time and
expense necessary to acquire sufficient education or training to enable
the party to become self-supporting at a standard of living reasonably
comparable to that enjoyed during the marriage.
g. The desirability of awarding the family home or the right to live in the
family home for a reasonable period to the party having custody of the
children, or if the parties have joint legal custody, to the party having
physical care of the children.
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N.W.2d at 678. In this case the court refused to divide the retirement plans of the
parties in light of the short-term nature of the marriage. We agree this was
equitable in this case. Alicia had started funding her 401(k) with her employer
before the marriage. The marriage lasted less than three years. Both parties are
employed with good incomes, which should allow them each the financial
resources to save for retirement. Justin’s argument that the 401(k) needs to be
divided because Alicia was awarded the marital home holds little weight as the
district court found the home had no equity, as the assessed value was lower
than the amount secured by the mortgage. We affirm the district court’s property
distribution award.
V. APPELLATE ATTORNEY FEES.
Finally, Justin claims he is entitled to appellate attorney fees.
Appellate attorney fees are not a matter of right, but rather rest in
this court’s discretion. Factors to be considered in determining
whether to award attorney fees include: “the needs of the party
seeking the award, the ability of the other party to pay, and the
relative merits of the appeal.”
h. The amount and duration of an order granting support payments to
either party pursuant to section 598.21A and whether the property
division should be in lieu of such payments.
i. Other economic circumstances of each party, including pension
benefits, vested or unvested. Future interests may be considered, but
expectancies or interests arising from inherited or gifted property created
under a will or other instrument under which the trustee, trustor, trust
protector, or owner has the power to remove the party in question as a
beneficiary, shall not be considered.
j. The tax consequences to each party.
k. Any written agreement made by the parties concerning property
distribution.
l. The provisions of an antenuptial agreement.
m. Other factors the court may determine to be relevant in an individual
case.
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In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted). In
light of the fact that both parties have the ability to pay their own attorney fees
and the fact Justin’s cross-appeal was not granted, we decline to award appellate
attorney fees to Justin.
Costs on appeal are assessed to Alicia.
AFFIRMED.