In Re the Marriage of Jesse Jacob Leib and Abby Jo Leib Upon the Petition of Jesse Jacob Leib, and Concerning Abby Jo Leib ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1918
Filed September 28, 2016
IN RE THE MARRIAGE OF JESSE JACOB LEIB
AND ABBY JO LEIB
Upon the Petition of
JESSE JACOB LEIB,
Petitioner-Appellee,
And Concerning
ABBY JO LEIB,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica L.
Ackley, Judge.
Abby Jo Leib appeals the physical-care provision and certain property and
liability-allocation provisions of the decree dissolving her marriage to Jesse
Jacob Leib. AFFIRMED AS MODIFIED AND REMANDED.
Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,
for appellant.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.
Abby Jo Leib appeals the physical-care provision and certain property and
liability-allocation provisions of the decree dissolving her marriage to Jesse
Jacob Leib. We affirm as modified and remand.
I. Background Facts and Proceedings
Abby and Jesse were married in June 2008. The parties have four minor
children: S.L., B.L, G.L., and T.L., who were fifteen, six, four, and two,
respectively, at the time of trial.
Abby, born in 1982, has a degree in welding and business management,
is employed as a welder, and makes $29,000 annually. Abby began this
employment in February 2015. Her workday begins at 9 a.m. and usually ends
at 6 p.m., and she works a forty-hour workweek, although her schedule is flexible
to accommodate the children’s schedules. Abby is able to get the children up,
ready, and off to school or daycare in the morning. From 2008 to 2012, Abby ran
an in-home daycare while providing care to her own children. From 2012 to
2014, she was exclusively a stay-at-home mother, and ran a small leather
business out of the home. During the course of the marriage, Abby was the
primary caregiver to the children.1 It is undisputed the children are healthy and
well-adjusted and the school-aged children are doing well academically. It is
further undisputed that both parties love their children. Some testimony
provided, however, indicated the eldest child had a strained relationship with her
father, had heated fights with her father, and preferred to live with her mother.
1
At trial, Jesse conceded it was by agreement of the parties that Abby stayed home and
cared for the children, an arrangement they had intended to continue until all of the
children were in school.
3
Jesse, born in 1972, is employed as an electrician by John Deere and
makes in excess of $90,000 annually. Jesse’s usual shift commences at 6 a.m.
and ends at 2:30 p.m., although he works overtime as well. 2 At trial, Jesse
indicated he had some flexibility in his scheduling, allowing him to start at 6:30
a.m. and to adjust his overtime and not work on the weekends he has the
children. However, the record reflects Jesse works most days of the week and is
regularly in before 6:30 a.m.3 On the days he has the children, Jesse intends to
drop the three youngest children off with his parents in the morning before
heading to work because of his early shift. The children will then sleep at their
grandparents’ house until the grandparents take them to school. The parties
attempted to institute this routine when the divorce was pending, but the children
wanted Abby to take them to school, so she continued to cover the morning
hours of the children’s day. Since Abby has returned to work, Jesse’s parents
provide daycare for the youngest child.
At the time of trial, both parties resided in the marital residence in
Dubuque, Iowa, although Abby was requesting to move to Cuba City, Wisconsin,
closer to where she works and her family resides. Abby’s parents work part-time
2
This overtime is often worked earlier in the day, with Jesse arriving at work as early as
2 a.m.
3
Jesse’s clock-in records for 2014 show he worked every day in January except for five
days, every day in February except for two days, every day in March except for four
days, every day in April except for six, every day in May except for five days, every day
in June except for two days, and every day in July except for three days. In August, he
took off eight days in a row, in addition to four other days. In September, he worked all
but five days, and he worked every day in October. Jesse took off the first nine days
and the last four days in November. He also took off the last eight days in December. In
2015, Jesse worked all but five days in January, all but three days in February, and all
but one day in March.
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jobs and are available to assist with childcare when needed. Cuba City is
approximately a twenty-minute commute from Dubuque.
Abby testified to a marriage plagued with communication issues. She
stated Jesse was controlling, they fought constantly, usually about the children
and money, and saw four different marriage counselors during their six years of
marriage. In June 2014, Abby moved out of the marital home with the children.
On July 3, 2014, Jesse filed a petition for dissolution of marriage. That
same day the court entered an order requiring that the children remain within the
jurisdiction of the court; Abby then moved back into the marital home with the
children. In October, Abby filed a request for temporary relief, citing Jesse’s
anger and verbal abuse and requesting arrangements be made so she could
move out of the marital home with the children. Following a hearing held
January 29, 2015, the court entered its order requiring, among other things, that
the children remain in the marital home, that Jesse agree before Abby could take
the children to visit her family in Wisconsin, and imposing a child-care
arrangement where the children rotated between the parents every four days.
Because of the temporary order, Abby remained in the marital home with
the children. The parties agree their relationship continued to deteriorate due to
the stress of the divorce and their living arrangement. At trial, Abby presented
audio recordings of fights between herself and Jesse. In these recordings, Jesse
screams and curses at Abby and berates her in front of the children. In one
recording, the eldest child asked her parents to stop arguing and cursing
because the younger children can hear them. Abby testified these recordings
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reflected the regular communications between the parties. Jesse testified they
often fight, with Abby also yelling and cursing in front of the children.
Abby also testified Jesse routinely called her stupid and selfish in front of
the children; a journal Abby kept indicates these events predated the filing of the
petition for dissolution. Abby’s sister testified to a telephone call she had with
Abby when she heard Jesse yelling at Abby and the children crying in the
background. The district court also noted the parties had poor communication
through text messaging.
The parties also had disputes over money—including the timeliness of bill
payments, communication about when money was being removed from the
accounts and how it was spent, and Jesse’s removal of Abby from all financial
accounts—such as checking accounts and credit accounts—in November 2013
so he could require her to request money before spending it. The parties also
disputed the money Abby spent on the maintenance of the horses she owned—
horses she had acquired prior to the marriage. Additionally, the parties disputed
the appropriate approach to disciplining the children.
Abby testified Jesse was controlling both in the marriage and during the
separation. The record reflects that, even before their separation, Jesse inquired
extensively into Abby’s plans and called others to inquire about Abby. Abby
testified that, since the temporary order, Jesse has denied her the right to go visit
her family with the children or granted her the right only after extensively
questioning her about her plans. Jesse admitted to extensively inquiring about
Abby’s location and plans when she takes the children to visit her parents. Jesse
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admitted he does not trust Abby, indicating he did not think Abby was at work
when she said she was.
In May 2015, the parties filed a pretrial stipulation in which they agreed to
the following relevant things: (1) the distribution of the dependency exemptions,
(2) the distribution of their vehicles, checking and savings accounts, Abby’s
horses, and Abby’s pension; and (3) the distribution of their liabilities, including
an approximate $31,000 loan owed on Jesse’s 401(k) policy, for which Jesse
accepted liability. The parties disputed physical care and visitation, alimony,
attorney fees, and the distribution of Jesse’s 401(k), Jesse’s pension, and
monies held in a trust account.
At the conclusion of a three-day trial, the district court allowed Abby to
move to Wisconsin and lifted any restrictions on her taking the children to
Wisconsin. The dissolution decree was filed on June 29, 2015. In the decree,
the court awarded joint custody and joint physical care of the children, with the
children to rotate between the parents on a weekly basis. The decree contained
the following provisions: Jesse would provide insurance for the children, Jesse
would pay $935.97 monthly in child support, Jesse would pay alimony in the
amount of $1000 per month for three years, Jesse would continue to carry life
insurance policies on the children, and the parties would evenly divide 47% of
Jesse’s 401(k)—the portion Jesse argued and the court determined was a
marital asset. Contrary to the parties’ stipulation, the district court awarded
Jesse the dependency exemptions for the three eldest children and Abby the
dependency exemption for the youngest child and split the debt owed on the
401(k) evenly between the parties. The court awarded Jesse the marital home
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and Abby the $6000 debt owed to her parents, and otherwise adopted the
distribution set forth by the parties in the pretrial stipulation. The court also
instructed Jesse to pay $3000 of Abby’s attorney fees and court costs.
On July 13, 2015, Abby filed a motion to amend or enlarge, asking, among
other things, that the court adopt the pretrial stipulation with regard to the
dependency deductions, allocate the remainder of the monies held in trust
accounts, and divide Jesse’s pension between the parties. Jesse did not object
to Abby’s request regarding the dependency deductions or object to the division
of the marital portion of his pension and also requested the monies held in trust
be divided, at least in part, to cover Abby’s attorney fee award. Jesse also filed a
motion to amend or enlarge in which he requested, in relevant part, the court
downward adjust its calculation of his annual income and require the children to
attend school in Dubuque. Abby opposed any downward adjustment in Jesse’s
estimated income or payment.
Following the parties’ respective motions to amend and enlarge, the court
adjusted its calculation of Jesse’s income to $90,512 and correspondingly his
child support obligation, denied the parties’ request to adjust the dependency
deductions, and declined to divide Jesse’s pension. The court required the
parties to agree on where the children were to attend school or, in the event the
parties were unable, required the children to remain in the Dubuque school
system. Finally, the court designated $2652.04 of the money in trust to satisfy
Jesse’s obligation to pay for Abby’s attorney fees and awarded Abby the
remaining $2011.
Abby appeals.
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II. Scope and Standard of Review
We review dissolution cases, which are tried in equity, de novo. Iowa R.
App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa
2012). While we give weight to the factual findings of the district court, especially
when considering the credibility of witnesses, we are not bound by them. Iowa
R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must
depend upon the facts of the particular case.” In re Marriage of Fennelly, 737
N.W.2d 97, 100 (Iowa 2007) (citation omitted).
III. Analysis
A. Physical Care
Where child custody and physical care are at issue in marriage dissolution
cases, the primary consideration is the best interests of the children. Iowa R.
App. P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
The court must consider joint physical care if requested by any party, and if it
denies joint physical care, the court must make specific findings of fact and
conclusions of law that awarding joint physical care is not in the children’s best
interests. Iowa Code § 598.41(5)(a) (2013); In re Marriage of Hansen, 733
N.W.2d 683, 692 (Iowa 2007). Our law provides a nonexclusive list of factors the
court shall consider in determining a custodial arrangement, see Iowa Code
§ 598.41(3), as well as nonstatutory factors, see Will, 489 N.W.2d at 398 (citing
In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974)). Factors to be
considered in determining whether joint physical care is in the children’s best
interests include (1) continuity, stability, and approximation; (2)“the ability of
spouses to communicate and show mutual respect”; (3) “the degree of conflict
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between parents”; and (4) “the degree to which the parents are in general
agreement about their approach to daily matters.” Hansen, 733 N.W.2d at 696-
99. Not all factors are given equal consideration, and the weight of each factor
depends on the specific facts and circumstances of each case. In re Marriage of
Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998).
First, we note the district court made no credibility findings. Occasionally,
we are able to discern some credibility determinations from the findings of fact.
That is not the case here. There are arguably no more than nine sentences in
the findings of fact relating to custodial matters, but those findings only recognize
“the parties love their children but have different parenting styles,” “the parties
[have] poor interaction in front of the children,” there has been “yelling and
sarcasm,” the children are doing well, and the parties are struggling and there “is
a great deal of anger and distrust.” After reciting some of the applicable law, the
decree provides us almost no analysis for review of the application of law to the
facts. Consequently, there is little basis for us to give weight to the conclusions
reached by the district court. See generally Iowa R. App. P. 6.904(3)(g).
On appeal, Abby alleges joint physical care was not properly before the
district court and was not appropriately awarded. As to Abby’s first argument,
Jesse explicitly requested joint physical care in the parties’ pretrial stipulation.
Further, at trial, Jesse reiterated his request that the court award joint physical
care. Accordingly, joint physical care was properly before the district court. We
next turn to Abby’s contention the district court should have awarded her physical
care.
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As we consider the factors of continuity, stability, and approximation, we
note Abby has been the primary caregiver to these children for their entire lives.
See Hansen, 733 N.W.2d at 700 (noting “[f]or most of the marriage, [the mother]
has been the primary caregiver” and thus “[t]he concepts of continuity, stability,
and approximation . . . cut strongly against joint physical care as a quality
alternative least disruptive to the children and most likely to promote their long-
term physical and emotional health”). Abby provided in-home care for the
children through 2014. Around six months before trial, Abby returned to work—
first part time and then full time. Even when working full time, Abby was
responsible for the children in the mornings, as her work schedule allowed her to
start work at a later hour than Jesse.
Jesse, on the other hand, has worked constantly to meet the financial
needs of the family—putting in overtime and often working weekends. Trial
testimony supports that, when not working, Jesse regularly spends at least one
to two evenings a night away from the marital home relaxing at his friend’s
house. Since Abby has returned to work, Jesse often takes care of the children
on the afternoons and evenings Abby is not around. The eldest daughter also
watches the children and Jesse’s parents help out. Plenty of testimony was
presented to support that both parents cook meals, bathe the children, and
attend their events. Abby indicated, however, that the vast majority of the
responsibility for the children fell on her both before and after Jesse filed for
dissolution. While Jesse disagrees with her division of the parental
responsibilities, it is clear from the record that joint physical care does not mirror
the caregiving of the parents predissolution. See id. at 697 (noting the relevant
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consideration that “the caregiving of parents in the post-divorce world should be
in rough proportion to that which predated the dissolution”).
Next, we consider the parties’ ability to communicate and show mutual
respect. See Iowa Code § 598.41(3)(c); Hansen, 733 N.W.2d at 698. The
record reflects the parties have a history of poor communication, with both
parties cursing, name calling, and arguing in front of the children. While the
district court noted the communication issues were exacerbated by the parties’
forced cohabitation while the divorce was pending, trial testimony supports that
these communication issues long predated the separation. Jesse feels Abby
often ignores his questions, while Abby feels bombarded by a plethora of
questions before Jesse will agree to what she feels are the simplest requests.
As a result of financial disputes between the parties, Jesse removed Abby from
all financial accounts to require her to request and explain her use of money.
Further, Jesse admitted he does not trust Abby. See Hansen, 733 N.W.2d at
698 (“A lack of trust poses a significant impediment to effective co-parenting.”).
The record lacks the requisite evidence supporting the parties’ ability to
communicate and show respect.
As to the third factor, our supreme court has noted:
Joint physical care requires substantial and regular interaction
between divorced parents on a myriad of issues. Where the
parties’ marriage is stormy and has a history of charge and
countercharge, the likelihood that joint physical care will provide a
workable arrangement diminishes. It is, of course, possible that
spouses may be able to put aside their past, strong differences in
the interest of the children. Reality suggests, however, that this
may not be the case.
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Id. While the district court believed the parties’ love for their children would
prevail after the parties were able to move into separate accommodations, the
history of the parties’ relationship does not support this. Even when Abby was
visiting her family, Jesse’s substantial distrust of Abby was evident by his
repeated texting and calling her to inquire about the details of and reasoning for
her stay. Moreover, “[t]he prospect for successful joint physical care is reduced
when,” as here, “one party objects to the shared arrangement.” Id.
As to the fourth Hansen factor, which considers “the degree to which the
parents are in general agreement about their approach to daily matters,” id., the
district court found “[t]he parties love their children but have different parenting
styles,” with “one parent [being] liberal and the other [being] strict in the way of
discipline techniques.” The record reflects Abby previously wanted to
homeschool the children, while Jesse was against homeschooling. The parties
are unable to agree on appropriate discipline and where the children should be
registered for school.
Upon our de novo review of the “total setting presented” in this case,
based on our factual findings and applicable law recited above, we determine
that joint physical care is not in the best interests of the children. Id.; see also
Iowa Code § 598.41(5)(a). Having determined joint physical care is not in the
children’s best interests, we “must next choose which caregiver should be
awarded physical care.” Hansen, 733 N.W.2d at 700.
There is no dispute that both parents are suitable custodians for their
children, capable of meeting their psychological and emotional needs. See Iowa
Code § 598.41(3)(a)-(b); see also Winter, 223 N.W.2d at 166-67 (noting we must
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consider the “emotional, social, moral, material, and educational needs of the
child[ren],” the “characteristics of each parent,” and the parent’s ability to provide
for those needs). Communication remains an issue for the parties, see Iowa
Code § 598.41(3)(c), although the issue is, at least in part, mutual. However,
both parents acknowledge the other parent is a good parent who loves the
children. There is no indication either parent would interfere with the other’s
relationship with the children. See id. § 598.41(3)(e).
Again, “the factors of continuity, stability, and approximation are entitled to
considerable weight” and favor placement of the children with Abby. Hansen,
733 N.W.2d at 700; see also Iowa Code § 598.41(3)(d). The children are
healthy, well-adjusted, and performing well in school. See Hansen, 733 N.W.2d
at 697 (“[S]uccessful caregiving by one spouse in the past is a strong predictor
that future care of the children will be of the same quality.”). We also note
evidence was presented at trial that the eldest child preferred to live with her
mother, although the child did not testify. See Iowa Code § 598.41(3)(f); see also
Winters, 223 N.W.2d at 166-67 (noting we must consider “[t]he interpersonal
relationship between the child and each parent” and “[t]he preference of the child,
if the child is of sufficient age and maturity”). Although we recognize a potential
change in schools could be disruptive in the short run, in total, we find the long-
term best interests of the children are served by placing them in the physical care
of their mother. We remand the matter for the district court to consider the
appropriate liberal visitation to be awarded to Jesse in the best interests of the
children and for recalculation of child support.
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B. Property Allocation
Abby challenges four economic provisions of the dissolution decree:
(1) the division of Jesse’s 401(k); (2) the division of the loan on the 401(k); (3) the
division of Jesse’s John Deere pension; and (4) the division of the dependency
exemptions. In matters of property distribution, we are guided by Iowa Code
section 598.21. The parties in a dissolution action “are entitled to a just and
equitable share of the property accumulated through their joint efforts.” In re
Marriage of O’Rourke, 547 N.W.2d 864, 865 (Iowa Ct. App. 1996). Iowa law
does not require an equal division, but rather, “what is fair and equitable in each
circumstance.” In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App.
2001). “Equitable distributions require flexibility and concrete rules of distribution
may frustrate the court’s goal of obtaining equitable results.” In re Marriage of
Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997). Thus, “it is inherent in the
court’s equitable powers, to make appropriate adjustments, according to the
unique facts of each case.” Id.
1. 401(k) Division
In its decree, the district court determined 47% of the 401(k) constituted a
marital asset, as Jesse testified he had been funding his 401(k) since 1995 and
had rolled over his 401(k) through four jobs. The district court equally divided the
47% between the parties. Abby claims on appeal the entirety of the 401(k)
should have been equally divided. We disagree with Abby’s contention she is
entitled to half of the entirety of the 401(k) and affirm the district court.
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2. 401(k) Loan
In the pretrial stipulation, the parties agreed to the division of their marital
property, except for Jesse’s pension and 401(k) and the cash held in trust. Jesse
accepted liability for the $31,706.29 loan taken against his 401(k). As addressed
above, when dividing Jesse’s 401(k), valued at $113,849.78, the district court
adopted the division sought by Jesse, dividing only the portion that accrued
during the parties’ marriage. We determine it was inequitable for the district court
to not adopt the distribution of the debt agreed to by the parties. We therefore
modify the decree and assign the 401(k) loan to Jesse, in conformity with his
agreement in the pretrial stipulation.
3. John Deere Pension
In the pretrial stipulation, the parties disputed the appropriate division of
Jesse’s John Deere pension. The division of the pension was not addressed in
the decree. Both parties requested the district court address this omission in
their respective motions to amend or enlarge: Abby sought to have the pension
divided equally while Jesse sought to have only the marital portion divided
equally. The court did not address the pension in its order on the motions. On
appeal, Abby requests division in accordance with the Benson formula. See In re
Marriage of Benson, 545 N.W.2d 252, 255-56 (Iowa 1996). Jesse argues the
district court’s failure to divide the pension is fair. The Iowa Code requires district
courts to divide marital property between the parties. See Iowa Code §
598.21(1); see also In re Marriage of McDermott, 827 N.W.2d 671, 682 (Iowa
2013). In this case, the Benson formula would equitably divide this asset, and
we see no reason to deviate from its application. We remand for the district court
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to order the appropriate allocation and direct counsel to prepare the necessary
qualified domestic relations order.
4. Income Tax Exemptions
Abby appeals the district court’s deviation from the pretrial stipulation in its
award of tax exemptions and credits for the children. In light of the above
change in the physical-care arrangement, we remand for the district court to
determine the appropriate division of the income tax exemptions and credits for
the children. See Iowa Ct. R. 9.6; see also In re Marriage of Okland, 699 N.W.2d
260, 269-70 (Iowa 2005).
C. Appellate Attorney Fees
Both parties request appellate attorney fees. “Appellate attorney fees are
not a matter of right, but rather rest in this court’s discretion.” Okland, 699
N.W.2d at 270. “[I]n determining whether to award attorney fees,” we consider
“the needs of the party seeking the award, the ability of the other party to pay,
and the relative merits of the appeal.” Id. (citation omitted). Having considered
these factors, we determine Jesse shall pay $2500 of Abby’s appellate attorney
fees. Costs shall be assessed to Jesse.
IV. Conclusion
For the foregoing reasons, we modify the terms of the decree to award
physical care of the children to Abby. We remand for a determination of
visitation, child support, allocation of income tax exemptions and credits, and
other related matters. We modify the decree to assign the 401(k) loan to Jesse
and to allocate the John Deere pension pursuant to the Benson formula.
AFFIRMED AS MODIFIED AND REMANDED.