In re The Marriage of Sokol ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-1918
Filed August 17, 2022
IN RE THE MARRIAGE OF RACHAEL KAY SOKOL
AND DAVID LANGDON SOKOL
Upon the Petition of
RACHAEL KAY SOKOL,
Petitioner-Appellee,
And Concerning
DAVID LANGDON SOKOL,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.
A former spouse appeals a decree of dissolution of marriage, arguing the
district court erred in awarding his ex-wife tie-breaking authority on decisions
regarding the parties’ children. He also claims the court erred in the property
distribution, the amount and duration of his spousal support award, and in failing
to award trial attorney fees. AFFIRMED AS MODIFIED AND REMANDED.
Kate Simon of Cordell Law, LLP, Des Moines, for appellant.
Stacey N. Warren of Cashatt Warren Family Law, P.C., Des Moines, for
appellee.
Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
2
SCHUMACHER, Judge.
David Sokol appeals the decree dissolving his marriage to Rachael Sokol.
He contends the court erred in providing Rachael tie-breaking authority within an
award of joint legal custody. He also claims the court erred in its property
distribution, the amount and duration of his spousal support award, and in declining
to award David trial attorney fees. On appeal, both parties request appellate
attorney fees.
We determine the district court improperly awarded Rachael tie-breaking
authority within a joint legal custody arrangement and the amount and duration of
spousal support is inequitable. We affirm the court’s property distribution and the
court’s declination to award David trial attorney fees. We remand for an award of
appellate attorney fees for David.
I. Background Facts & Proceedings
Rachael and David married in 2002. At the time of the marriage, Rachael
was in medical school. When Rachael graduated in 2005, the parties moved to
Michigan for Rachael’s four-year residency. The couple returned to Iowa in 2009
and remained in the Des Moines area for the rest of their marriage.
Rachael, age forty-five, works as an emergency room physician and earns
about $440,000 annually. She worked a second position for a few years as a
medical director at a facility in Fort Dodge, which raised her overall income to about
$500,000 a year. She gave up the medical director position in 2020 to spend more
time with her children. When the parties resided in Michigan, David, age forty-
three, worked as a furniture salesperson, earning about $70,000 a year. Since the
return to Iowa, he has worked as the owner-operator of Home Doctor LLC, which
3
does home renovations. He has invested personal funds in the business and has
not drawn income from the business since its inception. He has elected instead to
reinvest any profits back into the business. David testified that his business has
seen a downturn since the Covid-19 pandemic but is hopeful for an increase. The
district court imputed David an income of $50,000.
Pinnacle Harbor Investments, a separate LLC formed during the marriage,
owns real property in Woodward, Iowa. This property houses the showroom and
backroom for Home Doctor LLC. The Woodward property also contains an
apartment that is rented. The building and personal property inside the building
was damaged by the 2020 derecho. David received insurance proceeds. David
testified that he repaired some of the damage on his own, but has waited to repair
the rest of the building until the finalization of the parties’ dissolution. At the time
of trial, David held insurance proceeds of $218,213 in a checking account.
Rachael and David have two children, Ka.S., born in 2006 and Ko.S., born
in 2014. The family hired a nanny or used daycare for the children because of the
parties’ employment. Rachael testified that she is the parent that manages the
children’s appointments and monitors their school work. The parties’ inability to
communicate, particularly about the children, was a major point of contention at
trial.
The parties separated in July 2019. After separation, Rachael retained the
marital home and David moved to an apartment. Rachael testified that they had
divided the personal property by trial, although David disputes that representation.
Rachael and David shared temporary joint legal custody and temporary joint
4
physical care of the children. Rachael was ordered to pay David temporary
support of $5000 a month.
Trial was held over a three-day period in June 2021, with the only witnesses
being the parties, Rachael and David. By agreement of the parties, an affidavit
from Kevin Crowley on the value of the Woodward property was submitted in lieu
of live testimony.
Following trial, the court granted Rachael and David joint legal custody and
joint physical care, but gave Rachael the ultimate authority to make decisions
regarding the children. The court awarded David spousal support of $3000 a
month for forty-eight months. The court, with a few minor differences, adopted
Rachael’s proposed property distribution set forth in Rachael’s exhibit 35, resulting
in each party receiving net assets of over $664,000.1 David filed a motion for the
district court to reconsider, enlarge, or amend. Except for the correction of a
scrivener’s error, the court denied David’s motion.2 David appeals.
II. Standard of Review
“Marriage dissolution proceedings are equitable proceedings. Thus, the
standard of review is de novo. Although we give weight to the factual findings of
the district court, we are not bound by them.” In re Marriage of Mauer, 874 N.W.2d
103, 106 (Iowa 2016) (internal citations omitted). “[W]e will disturb a district court
determination only when there has been a failure to do equity.” Id.1 At the end of the trial, the court requested proposed findings of fact, conclusions
of law, and orders. These proposed orders do not appear in our record.
2 The ruling on the parties’ post-trial motions increased the equalization payment
to David to $123,924.50, to be paid through the entry of a Qualified Domestic
Relations Order.
5
“We review a challenge to a district court’s grant of attorney fees for an
abuse of discretion.” NevadaCare, Inc. v. Dep’t of Hum. Serv., 783 N.W.2d 459,
469 (Iowa 2010). “We will reverse a court’s discretionary ruling only when the court
rests its rulings on grounds that are clearly unreasonable or untenable.” Id.III. Discussion
David raises several issues on appeal. First, he contends the district court
should not have provided Rachael tie-breaking authority when the parties were
awarded joint legal custody. David also raises several points of error in the court’s
property division. He also claims the district court awarded an inadequate amount
and duration of spousal support. Finally, David argues the court abused its
discretion when the court declined to award him attorney fees. Both parties
request appellate attorney fees.
A. Final Decision-Making Authority
David claims the district court wrongly granted Rachael tie-breaking
authority in a joint custody arrangement. The district court granted the parties joint
legal custody and joint physical care. However, the court also provided a blueprint
for decision-making that requires Rachael to “consider David’s input and decide
on a course of action.” If David does not provide input, “Rachael may unilaterally
decide on the course of action.” Rachael needs to consult David, but she has the
final decision-making authority regarding the children.
Such a grant of authority is not contemplated by Iowa Code chapter 598
(2019). Instead, that chapter “appears to consider joint custody and sole custody
as all-or-nothing propositions.” Armstrong v. Curtis, No. 20-0632, 2021 WL
210965, at *3 (Iowa Ct. App. Jan. 21, 2021). Chapter 598 defines joint custody as:
6
[A]n award of legal custody of a minor child to both parents jointly
under which both parents have legal custodial rights and
responsibilities toward the child and under which neither parent has
legal custodial rights superior to those of the other parent. Rights
and responsibilities of joint legal custody include but are not limited
to equal participation in decisions affecting the child’s legal status,
medical care, education, extracurricular activities, and religious
instruction.
Iowa Code § 598.1(3) (emphasis added).
The legislature has instructed that, “If the court does not grant joint custody
under this subsection, the court shall cite clear and convincing evidence . . . that
joint custody is unreasonable and . . . the legal custodial relationship between the
child and parent should be severed.” Iowa Code § 598.41(2)(b). A district court
can either grant joint legal custody, with the equal rights to parents that it entails,
or sever the legal custodial relationship as to one parent.
The code does not permit an unequal distribution of decision-making
authority, or an unbundling of decision-making authority, when both parents retain
joint legal custodian powers. In Harder v. Anderson, Arnold, Dickey, Jensen,
Gullickson & Sanger, L.L.P., a noncustodial parent who had joint legal custody
sought to obtain her children’s mental-health records over the objection of the
custodial parent. 764 N.W.2d 534, 535 (Iowa 2009). The Iowa Supreme Court
ruled, “When joint legal custodians have a genuine disagreement concerning a
course of treatment affecting a child’s medical care, the court must step in as an
objective arbiter, and decide the dispute by considering what is in the best interest
of the child.” Id. at 538. We have found that “educational decisions fall within this
category.” In re Marriage of Bakk, No. 12-1936, 2013 WL 5962991, at *2 (Iowa Ct.
App. Nov. 6, 2013) (considering whether a child should have to attend educational
7
activities in daycare); see also In re Marriage of Laird, No. 11-1434, 2012 WL
1449625, at *2 (Iowa Ct. App. Apr. 25, 2012) (stating the Harder analysis “applies
equally to decisions concerning a child’s education” and considering the child’s
best interests in selecting the school district for the parties’ child to attend).
Also, in Gaswint v. Robinson, No. 12-2149, 2013 WL 4504879, at *5 (Iowa
Ct. App. Aug. 21, 2013), joint legal custodians could not agree on where the
children should attend school. This court cited Harder and concluded the district
court properly made a determination based on the best interests of the children,
as the parents, who had a right to “equal participation” in the issue, had reached
an impasse. Id.As a result, Rachael should not have been granted the ultimate decision-
making authority within an award of joint legal custody. We modify the decree to
eliminate this language.
B. Property Distribution
David challenges several portions of the district court’s property division.
Upon dissolution of a marriage, marital property is divided equitably based on the
factors found in section 598.21(5). In re Marriage of Hansen, 733 N.W.2d 683,
702 (Iowa 2007). Such division depends on the unique circumstances of each
case. Id. “An equitable division is not necessarily an equal division.” Id.“Ordinarily, a trial court’s valuation will not be disturbed when it is within the
range of permissible evidence.” Id. “Although our review is de novo, we ordinarily
defer to the trial court when valuations are accompanied by supporting credibility
findings or corroborating evidence.” Id.8
1. Woodward Property Value
David contests the valuation of his business property in Woodward.
Specifically, he claims the district court should not have awarded him both the full
value of the property and insurance proceeds related to damage the property
sustained in the 2020 derecho. He contends the insurance proceeds are meant
to restore the property’s value and thus the property value as it currently stands is
substantially lower than the court determined. He also claims the district court
should have reduced the value of the property by $85,000, which he claims is the
amount outstanding on the property’s mortgage. By reducing the value of the
property by the amount of the mortgage and insurance proceeds, David suggests
the property has a negative value.
The court relied on an affidavit from Kevin Crowley, a realtor, to determine
the value of the Woodward property. This affidavit is the only independent
evidence of the property’s value.3 The value was given after the August 2020
derecho. Given the lack of other credible evidence, the court properly accepted
the value Crowley suggested. Crowley noted, “I am also aware of the impact of
the August 2020 derecho on commercial buildings and valuations, if any. Based
on the current information for [the Woodward property], if the building is damaged,
it does not impact my opinion of the value of $205,092.” The insurance proceeds
are not necessary to restore the building to the value Crowley identified. The
district court’s determination is supported by credible evidence.
3In his affidavit of financial status, David valued the property at $121,000, although
he did not provide any documentation to support that value.
9
As for David’s assertion that the district court should have reduced the
mortgage of the property by $85,000, David did not offer any independent evidence
that such figure represented the debt against the property. The district court
reduced the value by $78,662.00 as representative of the mortgage debt.4 This
number is slightly greater than what David represented to be the mortgage on his
financial affidavit. We find the value used by the district court to be supported by
substantial evidence. We affirm the district court’s valuation of the Woodward
property.
2. Medical School Debt
David claims the district court wrongly treated Rachael’s medical school
debt as a marital asset in its division of property.5 Rachael and David married in
2002. Rachael graduated from medical school in 2005.
“Debts of the parties normally become debts of the marriage.” In re
Marriage of Sullins, 715 N.W.2d 242, 251 (Iowa 2006). Most of the student debt
was accrued during the marriage.6 Furthermore, the education Rachael obtained
through those loans enhanced her earning capacity. See In re Marriage of Deol,
No. 09-0909, 2010 WL 2925147, at *3 (Iowa Ct. App. July 28, 2010). Markedly,
the income Rachael obtained from her education was used to build up David’s
4 David’s financial affidavit, signed on the morning of the first day of trial indicates
the mortgage indebtedness is $76,063.31.
5 The student debt was awarded solely to Rachael. David contests its inclusion as
marital property to be divided by the dissolution because it permitted Rachael to
take more assets while retaining equal net property.
6 We note that whether property was acquired prior to marriage is not solely
dispositive as to whether it should be distributed upon dissolution, although it is
relevant. See Iowa Code § 598.21(5).
10
business. See id. Given these facts, we determine that equity requires Rachael’s
medical school student loan debt be included in the property division.
3. Retirement Account
David argues the district court should have divided Rachael’s 401(k)
retirement account separately from the rest of the property “based on the tax
implications.” However, in the single paragraph devoted to this argument, David
cites no authority supporting the proposition that the court should divide the
property separately from the rest of the dissolution property division. 7 “Failure to
cite authority in support of an issue may be deemed waiver of that issue.” Iowa R.
App. P. 6.903(g)(3); see also Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239,
240 (Iowa 1974) (“To reach the merits of this case would require us to assume a
partisan role and undertake the appellant’s research and advocacy. This role is
one we refuse to assume.”). Further, the record before this court is void of any
evidence on the tax consequences of the division of Rachael’s 401(k). We affirm
that portion of the district court ruling.
7This court has noted:
Pension rights are not easily valued. Consequently, the preferred
method of valuation of these benefits is, as here, to divide a plan
through a qualified domestic relations order which, in essence,
separates the pension rights into two separate accounts. This makes
valuation of the pension unnecessary, allows the court to allocate
other assets equitably, and assures similar retirement security for
both spouses. However, such a division of pension benefits is not
an absolute requirement. The allocation of a pension, like the
allocation of all other property interests, comes only after the pension
has been considered in the overall scheme of an equitable division.
In re Marriage of Fall, 593 N.W.2d 164, 167 (Iowa Ct. App. 1999) (internal citations
omitted).
11
4. Guns and Tactical Gear
David contests the district court awarding Rachael guns, ammo,
magazines, tactical gear, and a generator.8 Rachael claimed that David had those
items in his possession because they were missing from the familial home after
they separated. David responds by noting there was no evidence that the missing
items were in his possession. He asks this court to allow the guns—which he
claims are registered in his name—to remain in his possession, and that “[a]ny
other property alleged to be in his possession . . . should be awarded to Rachael,
as there is no evidence to the contrary that these items left the marital home.”
David acknowledges in his appellate brief that “[t]here was conflicting
testimony regarding the guns.” The district court noted that Rachael credibly
testified “about what items she wanted, how they were registered, and if these
items were in her possession or in David’s possession.” We give weight to the
court’s credibility determinations. See Hansen, 733 N.W.2d at 690. As such, we
affirm the court’s property division as it relates to this property.
5. Miscellaneous Personal Property
David claims the district court disregarded the difference in personal
property awarded to each party, resulting in Rachael obtaining $85,000 more in
property. The district court expressly found “Rachael provided credible supporting
documentation and/or testimony supporting the values included in her Affidavit of
Financial Status.” This tracks with the district court consistently finding Rachael to
8The contested items include three guns, a gun case, several gun magazines, gun
ammunition, and a tactical helmet and vest.
12
be the more credible witness.9 Conversely, “David provided no listing of any items
that he wanted, nor did he provide realistic values for the same.”10 Given the
district court’s well-supported credibility determinations, we decline to alter its
property division as to the miscellaneous personal property.
C. Spousal Support
The district court ordered Rachael to pay David $3000 a month for forty-
eight months in spousal support. In doing so, the court emphasized the significant
award David received in the property distribution, the lack of sacrifices he made to
further Rachael’s earning capacity, and his capacity to earn a salary similar to his
standard of living pre-dissolution. The court found the award “will assist David in
transitioning from his current lack of a business model to a concrete, realistic
business model. The transition once complete should improve his earning
capacity. . . .”
On appeal, David requests an award of permanent spousal support at a rate
of $11,625 a month.11 To justify the award, he points to the nineteen-year length
of the marriage, the large disparity in earning capacity, and his need for the award
to maintain the lifestyle he grew accustomed to during the marriage.
9 The court found Rachael to be more credible in determining the value of the
Woodward property and the marital home. In contrast, David “could not accurately
recall or provide credible documentary evidence establishing [his] business’s
assets.”
10 In the court’s ruling on David’s motion to reconsider, it noted, “David’s testimony
on the household contents lacked credibility, was incoherent . . . [and included]
conflicting testimony about what he thought was personal property and what he
thought was business property. His [exhibit delineating what property remained in
the home and its value] was not credible.”
11 At trial, David requested a permanent award of $10,000 per month. In his rule
1.904 motion, he requested $5000.00 for seven years.
13
“Our cases repeatedly state that whether to award spousal support lies in
the discretion of the court, that we must decide each case based upon its own
particular circumstances, and that precedent may be of little value in deciding each
case.” In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015). We must “closely
examine all the statutory factors [(in Iowa Code section 598.21(3))] and the entire
record in each case.” Id.Spousal support is generally broken down into four distinct categories—
traditional, rehabilitative, reimbursement, and transitional—but our supreme court
has also recognized that hybrid awards may be appropriate. See In re Marriage
of Pazhoor, 971 N.W.2d 530, 546-47 (Iowa 2022) as amended (Apr. 6, 2022), reh’g
denied (Apr. 6, 2022) (finding a hybrid traditional-rehabilitative award for a seven-
year period was appropriate).
We conclude that formal recognition of transitional alimony will assist
the bench and bar. There are inequities in dissolution beyond a
spouse’s “economic sacrifices” that “directly enhance[d] the future
earning capacity of the other,” a spouse’s need for education or
retraining to become self-sufficient, or a spouse’s responsibility to
support the other “so long as a dependent spouse is incapable of
self-support.” There may be a need for short-term support in some
cases to help “transition from married life to single life.” Transitional
alimony can ameliorate inequity unaddressed by the other
recognized categories of support. Divorcing spouses must adjust to
single life. If one is better equipped for that adjustment and the other
will face hardship, then transitional alimony can be awarded to
address that inequity and bridge the gap. We now formally recognize
transitional alimony as another tool to do equity.
Id. at 541–42 (internal citations omitted).
While we must examine the facts of each case closely, we find Pazhoor
instructive. In that case, one spouse, a physician, earned roughly $500,000 a year.
Id. at 535. The other spouse, who predominately stayed at home with the children
14
but had a medical degree, had income of roughly $23,000 a year. Id. Despite the
seventeen-year marriage and difference in earning capacity, the court determined
the economically dependent spouse could earn enough to maintain a standard of
living similar to the pre-dissolution standard after a brief period of reschooling. Id.
at 543 (finding a lifetime award was inappropriate given the spouses “age, health,
potential earnings, and the seventeen-year duration of their marriage”). The
supreme court awarded the spouse transitional alimony of $8500.00 monthly for a
period of seven years. Id. at 546.
Here, the district court found Rachael earned roughly $440,000 per year.12
In contrast, David has not drawn income from his business since 2010, reinvesting
it in his business instead. Because David does not dispute the district court
imputing him an earning capacity of $50,000, we utilize that figure. We agree with
David that the difference in earning capacity and length of marriage warrants an
increase in the spousal support award. See id. at 542–43. And while David was
awarded a substantial sum in the property division, that “award does not
overshadow [Rachael’s] comparatively large earning capacity.” See id. at 542.
Despite some factors supporting an increase in the award, other statutory
factors suggest a permanent award is unnecessary. David has reinvested the
profits into his business. And while he cannot presently support himself at a
standard of living comparable to that he experienced pre-dissolution, he could
12 We recognize David’s argument that Rachael’s earning capacity is closer to
$500,000, since she voluntarily reduced her income by giving up her job as a
medical director to spend more time with the children. See Gust, 858 N.W.2d at
411 (“[W]e focus on the earning capability of the spouses, not necessarily the
actual income”). However, that would require Rachael to work more than one full-
time job, which we will not require.
15
draw income from his business or shift careers back into sales. Further, the
amount he requests is unnecessary to support the standard of living he was
accustomed to during the marriage. And the spouse in Pazhoor had not worked
outside the home since the birth of the children. Id. at 535. David has not left the
workforce.
Transitional alimony is not needed when the recipient has sufficient
income or liquid assets to facilitate the change to single life. We
decline to require a showing of undue hardship and instead rely on
district courts to do equity when awarding transitional alimony to
“bridge the gap” from married to single life.
Id. at 545.
Given the factors outlined above, we determine a transitional award is
appropriate. We find an award of $5000 a month for seven years is appropriate to
address the inequity and bridge the gap, assisting David with the transition from
married to single life. That award will provide David time to build his business and
draw sufficient income to maintain a comparable standard of living to what he
enjoyed during the marriage. He expressed no intent to return to school or the
need for additional education. He is living in an apartment and looking to purchase
a home. This transitional support will also provide time for him to rejoin the
workforce in a sales position similar to what he worked in before the family’s return
to Iowa. Rachael can pay such an award, and even after increasing David’s
income, the disparity in earning capacity will remain great. See id. at 546.
Accordingly, after review of the factors in Iowa Code section 598.21A(1) and
consideration of the goal of spousal support, we determine that an award of $5000
per month for seven years does equity between the parties.
16
D. Attorney Fees
David contends the district court abused its discretion when it declined to
award trial attorney fees.13 He claims the court should have awarded him $20,000.
“Whether attorney fees should be awarded depends on the respective abilities of
the parties to pay.” Sullins, 715 N.W.2d at 255. The district court found, “David
presented no evidence of his attorney fees at trial. His Affidavit of Financial Status
shows no outstanding attorney fees. Rachael and David should each pay their
own attorney fees if any remain unpaid, as both are capable of doing so.” We find
neither party showed they were entitled to trial attorney fees. We affirm the trial
court in this regard.
Both parties request appellate attorney fees. This court lacks the
information necessary to determine an appropriate award of appellate attorney
fees. Such awards “are not a matter of right,” but depend on “the needs of the
party seeking the award, the ability of the other party to pay, and the relative merits
of the appeal.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005)
(citation omitted). Neither party submitted evidence of the attorney fees they
incurred on this appeal. Both parties prevailed to some extent on appeal.
However, given the disparity in income, we determine David is entitled to an award
of appellate attorney fees. We conclude Rachael is not entitled to appellate
attorney fees. While we would prefer to set those fees rather than require the
13 Rachael suggests this issue is not preserved for our review. However, she
acknowledges that it was an issue listed for trial and that the district court ruled on
the matter. Because the matter was raised before the district court and ruled upon,
the issue is preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002).
17
district court to do so, given the lack of an attorney fee affidavit or other supporting
documentation from David, we are left with a remand as an option. We remand to
the district court to determine an appropriate award of appellate attorney fees for
David and enter judgment in his favor in that amount.
E. Conclusion
We affirm the court’s award of joint legal custody as modified by eliminating
the language that granted Rachael tie-breaking authority. We affirm the district
court’s determinations as to the property distribution between the parties. We
modify the court’s award of spousal support to David to increase the award of
spousal support to $5000 a month for seven years. Finally, we affirm the denial of
David’s request for attorney fees and remand for the district court to set a
reasonable award of appellate attorney fees for David.
AFFIRMED AS MODIFIED AND REMANDED.