In re the Marriage of Lusk ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1943
Filed July 22, 2020
IN RE THE MARRIAGE OF DAVID LESTER LUSK
AND DAWN RACHELLE LUSK
Upon the Petition of
DAVID LESTER LUSK,
Petitioner-Appellant,
And Concerning
DAWN RACHELLE LUSK,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.
Kilnoski, Judge.
David Lusk appeals the child support award and valuation of Dawn Lusk’s
retirement account. AFFIRMED.
Amanda Heims, Council Bluffs, for appellant.
Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, and Amy E.
Garreans of Garreans Law, LLC, Council Bluffs, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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MULLINS, Judge.
David Lusk appeals the district court’s calculation of child support and
valuation of Dawn Lusk’s retirement account. David argues the child support
award is not appropriate considering the custody arrangement and assets were
inequitably divided between the parties because of a miscalculation of Dawn’s
retirement account.
I. Background Facts and Proceedings
David and Dawn Lusk were married for twenty-one years. The parties share
three children, one of whom has turned eighteen since the time of trial. The
younger children, twins, were thirteen at the time of trial. Throughout the course
of the proceedings, Dawn remained in possession of the family home. A temporary
order specified a visitation arrangement that was not always followed but was not
the root of problems between the parties.
At the time of trial, David had a retirement plan through his employer valued
at $34,726.73. Dawn’s 401k was valued at $9487.03 at the time of trial. The
district court set David’s annual income at $44,399.00. Dawn’s income was set at
$50,296.00 annually, earned from her employer and part-time self employment.
The district court ordered that the couple share joint legal custody of the
children. The parties share physical care of one twin, alternating every other week.
Dawn has physical care of the other twin and David has visitation every other
weekend. No visitation was specified for the oldest child, who is also in Dawn’s
physical care. David was ordered to pay child support to Dawn in the amount of
$672.00 per month from October 2019 to February 2020. The oldest child was no
longer eligible for support beginning March 1, 2020, reducing David’s child support
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payments to $434.00 per month. The district court also ordered that each party’s
retirement account “be divided equally between the parties, with each party to
receive half of the value of the other’s account as of the date of entry of this
decree.” Each party was also required to pay their own legal fees.
David filed a post-trial motion to reopen the record or for new trial arguing,
in part, the district court should recalculate child support and the value of Dawn’s
retirement account. In its ruling on the motion, the district court found Dawn spent
$4000.00 from her 401k on attorney fees for the dissolution prior to trial. In
response to David’s argument, the district court ordered “that $2000.00 of the
balance of Dawn’s 401k shall be set aside to David. The remainder of Dawn’s
401k shall be divided equally between the parties.” The district court did not
otherwise modify the value of Dawn’s 401k and made no modification to its original
child support calculation. David appeals.
II. Standard of Review
Dissolution proceedings are reviewed de novo. In re Marriage of Larsen,
912 N.W.2d 444, 448 (Iowa 2018). “We give weight to the fact findings of the trial
court but are not bound by them.” Id.
III. Discussion
A. Child Support
David argues the district court miscalculated the child support award in
failing to reduce his annual income for extra duties performed in the past that he
does not expect to earn in the future. Dawn argues the child support calculation
is correct.
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In calculating child support, Iowa courts use the Uniform Child Support
Guidelines, which raise a rebuttable presumption “that the guidelines determine
the correct amount of the monthly [child] support obligation.” Markey v. Carney,
705 N.W.2d 13, 19 (Iowa 2005). “The guidelines establish the amount of child
support largely by determining the net monthly income of each parent derived from
their gross monthly income.” Id. (quotations omitted). Income sources including
“overtime income, incentive pay, and bonuses” may be included in the income
calculation if “reasonably expected to be received in the future.” Id. If the extra
income is a one-time earning or the earning is not reasonably expected in the
future, it may not be used to determine gross monthly income. Id. A recipient of
extra income bears the burden to prove that it should be excluded. Id. at 20.
David submitted his 2018 income tax return showing he claimed $40,649.00
as wages and $3750.00 as additional income. Tax returns from 2016 and 2017
were also submitted to the court. Neither the 2016 nor the 2017 tax returns show
David claimed any additional income. At trial, David testified the additional
$3750.00 he earned in 2018 was for work done at his full-time job in addition to his
regular duties. He said the additional work was not something done recurrently
and that he had not performed the extra work since February of 2019. David also
submitted paystubs from June, July, and August 2019. The 2019 paystubs show
he worked overtime during each pay period. His year-to-date income as of the pay
period ending July 20, 2019, was $23,858.24. The district court’s child support
award was based on David’s 2018 income, including the $3750.00 he earned in
additional income.
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David’s paystubs from the summer of 2019 show he consistently works
overtime. Extrapolating annual pay from the paystubs further supports that the
district court’s findings were within the range of the evidence. Based on our de
novo review of the record, we find no error in the district court’s calculation of
David’s income. Cf. In re Marriage of Keener, 728 N.W.2d 188, 194 (Iowa 2007)
(“A trial court’s valuation will not be disturbed when it is within the range of
evidence.”).
B. Retirement Account
David argues the district court miscalculated the value of Dawn’s retirement
account, resulting in an inequitable division of those funds. Dawn argues the
district court’s award of $2000.00 to David from her 401k following the motion to
reopen the record was a proper valuation and equitable division of property.
“In dissolution-of-marriage cases, marital property is to be divided
equitably,” which “is not necessarily an equal division” of property. In re Marriage
of Hansen, 733 N.W.2d 683, 702 (Iowa 2007). In general, divisible assets should
be valued as of the date of a dissolution trial. In re Marriage of Geist, No. 15-0578,
2016 WL 3003637, at *4 (Iowa Ct. App. May 25, 2016). But, in some cases,
flexibility is required to achieve an equitable distribution. Id. “A trial court’s
valuation will not be disturbed when it is within the range of permissible evidence.”
Hansen, 733 N.W.2d at 703. A property owner may testify to its value. 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.
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The district court ordered that both retirement accounts should be divided
equally between the parties and ordered each party to pay their own attorney fees.
The evidence shows Dawn’s 401k contained deposits and credits totaling
$17,594.03 by July 31, 2019. But, prior to July 31, Dawn took an $8107.00
distribution from her 401k. Dawn testified $4000 was used to pay legal fees for
divorce proceedings and the rest was used to file individually for bankruptcy, repair
and pay for the home, and pay half of the costs for the couple’s oldest child to buy
a car, leaving the balance in the 401k at $9487.03 as of July 31, 2019. The district
court determined the value of Dawn’s 401k to be $9487.00 at the time of trial.
Following David’s post-trial motion, the district court set aside $2000.00 of the
value of the 401k at the time of trial for David, apparently to be an equitable
distribution based on the $4000.00 Dawn spent on attorney fees. Otherwise, the
court accepted the value of Dawn’s 401k at the time of trial.
On our review of the record, we find the district court’s acceptance of
Dawn’s 401k value as of the time of trial was “within the range of permissible
evidence” and do not disturb it. Id.
IV. Conclusion
On our de novo review, we find the district court correctly determined the
value of David’s income and do not disturb the child support award. We also find
the district court correctly assessed the value of Dawn’s 401k.
AFFIRMED.