In re the Marriage of Brown

IN THE COURT OF APPEALS OF IOWA
No. 19-0705
Filed February 5, 2020
IN RE THE MARRIAGE OF JACOB R. BROWN
AND ABBY S. BROWN
Upon the Petition of
JACOB R. BROWN,
Petitioner-Appellant/Cross-Appellee,
And Concerning
ABBY S. BROWN,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson,
Judge.
Jacob Brown appeals, and Abby Brown cross-appeals, the decree
dissolving their marriage. AFFIRMED AS MODIFIED ON BOTH APPEALS AND
REMANDED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellant.
M. Leanne Tyler of Tyler & Associates, PC, Bettendorf, for appellee.
Heard by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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MULLINS, Judge.
Jacob (Jake) Brown appeals, and Abby Brown cross-appeals, the decree
dissolving their marriage. Jake challenges the physical-care, visitation, right-of-
first-refusal, and spousal-support provisions of the decree. Abby challenges the
court’s spousal-support award as inadequate and the award of a portion of her pre-
and post-retirement death benefits to Jake as inequitable.
I. Background Facts and Proceedings
The parties married in 2004. The marriage produced two children, a son,
born in 2006, and a daughter, born in 2008. At the time of trial, both parties were
thirty-eight years of age. Both are in good physical health.
Jake has a college degree in business management. He is employed as
an “area specialty manager” in sales for a large pharmaceutical company. At the
time of trial, Jake’s gross annual income amounted to $178,000.00.1 Jake is very
good at his job. His job requires frequent travel; he is typically away on business
at least two or three nights per week. At least twice per year, he is required to be
away on business for a week at a time. The record alludes to the fact that some
of Jake’s business trips were extended before and after the parties’ separation for
the purpose of spending social time with his girlfriend in Minnesota.2 Abby
possesses bachelor’s and master’s degrees. She is employed as a kindergarten
1 This figure includes an annual base salary of $122,000.00 and an annual bonus
Jake anticipated would amount to $56,000.00.
2 We disavow any indication of fault against Jake for his extramarital affair—Iowa
is a no-fault dissolution-of-marriage state. See In re Marriage of Fennelly, 737
N.W.2d 97, 103 (Iowa 2007). “[W]e only consider a party’s indiscretions if [a] child
was harmed by the behavior.” In re Marriage of Rothfus, No. 13-1745, 2014 WL
2885340, at *4 (Iowa Ct. App. June 25, 2014).
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teacher. Her gross annual income at the time of trial was $73,542.84. Abby is an
exceptional teacher and is great with children. Her peers and acquaintances
described her as a nurturing and positive role model for children.
During the marriage, the parties made a good team when it came to
parenting. The children are involved in numerous extracurricular activities, which
both parents have been highly involved in. Jake sometimes misses out on the
children’s extracurricular activities due to his frequent travel. Both parties are
unquestionably loving and devoted parents. However, due to Jake’s work
obligations, Abby has necessarily carried a somewhat heavier load of the day-to-
day and behind-the-scenes parenting responsibilities while Jake is away. Prior to
the parties’ separation, Abby’s parents were also frequently relied upon to assist
with providing transportation for the children.
The parties separated and Jake moved out of the family home in June 2018.
Upon their separation, the parties agreed they would have equal parenting time
with the children. Abby testified she only agreed to the two-day, two-day, three-
day parenting schedule because it was the only way Jake would vacate the marital
home. This schedule alternates so that the children are with Abby on Monday and
Tuesday one week and with Jake on Monday and Tuesday of the next week, and
so forth. Jake testified the arrangement has generally gone well, although he
agreed the children have experienced difficulties with transitioning between the
parents. Abby disagreed the arrangement has gone well, complaining she and the
children are required to adapt to Jake’s schedule and the alternating schedule
makes maintaining routines more difficult. While the parties agreed to an
alternating two-day, two-day, three-day schedule, Abby testified it has not been
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followed due to Jake’s work obligations. Instead, the parties generally develop a
monthly plan before each month based off of Jake’s anticipated work schedule.
Generally, the circumstances required Abby and the children to adapt to Jake’s
work schedule when there is a schedule conflict. Despite the transitional and
scheduling issues, as the district court noted, the parties “have done an admirable
job of communicating about the children’s needs and activities.”
Jake filed his petition for dissolution of marriage in July. The matter
proceeded to trial in February 2019. The disputed issues included physical care,
spousal support, and division of the parties’ assets. The court ultimately awarded
the parties joint legal custody. The court placed the children in Abby’s physical
care with extraordinary visitation to Jake. The court reasoned, given Jake’s work
schedule and frequent fluctuations in the parenting schedule, a joint-physical-care
arrangement would be too disruptive for the children. As to visitation, the court
awarded Jake three overnights every other weekend and one mid-week overnight
per week.3 The parties were awarded essentially equal amounts of the marital
estate. The court ordered that Abby’s Iowa Public Employees’ Retirement System
(IPERS) pension be divided by way of a qualified domestic relations order (QDRO)
and Jake be named the contingent annuitant for fifty percent of Abby’s post-
retirement death benefit and the beneficiary for one-hundred percent of Abby’s
pre-retirement death benefit. As to spousal support, upon its understanding that
Jake agreed to the same, the court awarded Abby $1000.00 in transitional spousal
support per month for five years.
3 As to child support, the court awarded Jake a fifteen percent extraordinary
visitation credit. See Iowa Ct. R. 9.9.
5
Both parties filed motions to reconsider, enlarge, or amend pursuant to Iowa
Rule of Civil Procedure 1.904(2). Jake requested, among other things, that the
physical-care arrangement be modified to shared care or he be granted additional
visitation, a right-of-first-refusal provision be added to allow him the first opportunity
to care for the children when Abby is unable to do so during her parenting time,
and his spousal-support obligation be eliminated in light of physical care being
awarded to Abby. None of the issues raised in Abby’s motion are germane to this
appeal. Following an unreported hearing, the court largely denied Jake’s motion.
Relevant to the issues raised in this appeal, the court modified Jake’s spousal-
support obligation to $350.00 per month for thirty months. Both parties appeal.
II. Standard of Review
Appellate review of dissolution proceedings is de novo. Iowa R. App. 6.907;
In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). 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);
Fennelly, 737 N.W.2d at 100. Because the court bases its decision on the unique
facts of each case, precedent is of little value. In re Marriage of Brown, 776 N.W.2d
644, 647 (Iowa 2009). As to child custody, our principal consideration is the best
interests of the children. Iowa R. App. P. 6.904(3)(o); see In re Marriage of
Weidner, 338 N.W.2d 351, 356 (Iowa 1983).
III. Analysis
A. Physical Care
Jake challenges the district court’s decision to place the children in Abby’s
physical care rather than in the parties’ shared care. Where, as here,
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joint legal custody is awarded to both parents, the court may award
joint physical care to both joint custodial parents upon the request of
either parent. . . . If the court denies the request for joint physical
care, the determination shall be accompanied by specific findings of
fact and conclusions of law that the awarding of joint physical care is
not in the best interest of the child.
Iowa Code § 598.41(5)(a) (2018). “‘Physical care’ means the right and
responsibility to maintain a home for the minor child[ren] and provide for the routine
care of the child[ren].” Id. § 598.1(7). Under a joint-physical-care arrangement,
“both parents have rights and responsibilities toward the child[ren] including but
not limited to shared parenting time with the child[ren], maintaining homes for the
child[ren], providing routine care for the child[ren] and under which neither parent
has physical care rights superior to those of the other parent.” Id. § 598.1(4).
Physical-care determinations are based on the best interest of children, not “upon
perceived fairness to the spouses.” In re Marriage of Hansen, 733 N.W.2d 683,
695 (Iowa 2007). “The objective of a physical care determination is to place the
children in the environment most likely to bring them to health, both physically and
mentally, and to social maturity.” Id.We consider the following nonexclusive factors in determining whether a
joint-physical-care arrangement is in the best interests of children:
(1) “approximation”—what has been the historical care giving
arrangement for the child[ren] between the two parties; (2) the ability
of the spouses to communicate and show mutual respect; (3) the
degree of conflict between the parents; and (4) “the degree to which
the parents are in general agreement about their approach to daily
matters.”
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting
Hansen, 733 N.W.2d at 697–99).
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We first consider approximation. The district court expressly concluded
each parent would be a suitable physical custodian for the children. We agree.
Under such a circumstance, stability and continuity of caregiving are primary
factors in considering whether joint physical care should be ordered. Hansen, 733
N.W.2d at 696. The evidence is clear that the parties’ parenting of the children
has been a team effort. “[L]ong term, successful, joint care is a significant factor
in considering the viability of joint physical care after” dissolution. Id. at 697. That
being said, Jake’s frequent travel has necessarily placed more of the day-to-day
and behind-the-scenes parenting responsibilities on Abby. On the other hand, the
evidence is clear that Jake is a highly engaged parent when he is not away on
business. Given the circumstances of this case, we do not find the approximation
factor to be predominant. At the end of the day, “both parents have actively cared
for the child[ren] before and since the separation.” Iowa Code § 598.41(3)(d).
We turn to the parties’ ability to communicate and show mutual respect and
the degree of conflict between them. Hansen, 733 N.W.2d at 698. We agree with
the district court that the parents, despite the circumstances of their separation,
“have done an admirable job of communicating about the children’s needs and
activities.” We also agree with the court’s statement from the bench following trial:
I wanted to tell both of you that I think you’ve handled a very
stressful situation very well, the two of you have, and I want to
compliment you on that. As you can imagine, we see lots of people
going through divorces, and we see lots of ways they deal with each
other and with the children, and, for the most part, it appears to me
that you have done exactly what we hope people do, try to keep
children out of the middle for the most part, try to deal with each other
civilly and professionally. . . . You’re both obviously good parents,
so I want to compliment you on that.
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Simply stated, there is no reason to conclude the parties’ ability to communicate
or show mutual respect or the degree of conflict would be impediments to a joint-
physical-care arrangement. As to the final factor, “the degree to which the parents
are in general agreement about their approach to daily matters,” id. at 699, we find
no evidence in the record that the parents harbor diverse child-rearing
philosophies.
As the district court alluded to, consideration of the Hansen factors results
in a conclusion that a joint-physical-care arrangement would be workable.4 But
the Hansen factors are non-exclusive, and the overarching inquiry is whether such
an arrangement would be in the children’s best interests. See id. at 699–700.
Jake’s testimony acknowledged the children struggled a little with the frequent mid-
week housing transitions, but insisted the children were adjusting and doing well.
Abby testified she did not think the children were handling the changing routines
very well and insisted they needed a more stable arrangement that did not
alternate and change to accommodate Jake’s schedule. The district court
concluded Jake’s frequent travel and the parenting schedule he requested to
accommodate his work schedule would be too disruptive for the children,
especially given the fact that the agreed-upon temporary schedule, which Jake
requested be adopted as part of the dissolution decree, was too unstable and
required Abby and the children to adapt to Jake’s work schedule. The district court
reasoned:
4 The court noted: “As to the factors for shared care, the parties live in close
geographic proximity and communicate extraordinarily well. They show mutual
respect, and there is little conflict between them. They appear to be in general
agreement in their approach to daily child care matters.”
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The Court credits the testimony that [the parties’ son] is angry and
sad over the divorce. His relationship with Jacob is somewhat
strained at this point. A 2-2-3 schedule is quite disruptive to the
children’s lives and schedules, especially when even this schedule
is in flux week-to-week due to Jacob’s travel. [The parties’ daughter]
struggles somewhat in school and stability is essential for her. Abby
is an extremely organized parent and can best meet this need. While
some of these issues could be overcome, the Court finds that
Jacob’s travel schedule, together with these concerns, dictate the
children be placed in Abby’s primary physical care.
Although the district court did not make specific credibility findings, in
deciding what arrangement is in the best interests of the children, the foregoing
quote clearly demonstrates the court considered Abby’s testimony concerning the
children’s needs and their responses to the 2-2-3 schedule, and how weekly
alternating of the days the children were with each parent adversely affected daily
and weekly routines, to be more credible than Jake’s testimony.
We could conclude from reviewing only the paper record before us that the
schedule was not really that unstable, at least while Abby was keeping track of
who was exercising parenting time from July 2018 to early January 2019. There
were very few major deviations from the arrangement. And, a joint-care
arrangement involving equal time with each of these suitable and devoted parents
could “assure the child[ren] the opportunity for the maximum continuing physical
and emotional contact with both parents” and could “encourage the parents to
share the rights and responsibilities of raising the child[ren],” which is in the
children’s best interests. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.
App. 1996); accord Iowa Code § 598.41(1)(a); In re Marriage of Gensley, 777
N.W.2d 705, 714 (Iowa Ct. App. 2009) (“The district court shall make an award
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that . . . assures the children the ‘opportunity for the maximum continuing physical
and emotional contact with both parents.” (citation omitted)).
While we might have made different findings had we been the trier
of fact, the district court heard the witnesses, and we did not. Since
this particular case turns largely on the relative credibility of [Jake
and Abby], and more generally on their trustworthiness, we defer to
the district court’s findings
and agree with its conclusions. In re Marriage of Zogg-Kellett, No. 09-0652, 2010
WL 625023, at *4 (Iowa Ct. App. Feb. 4, 2010). We agree with the district court’s
concerns that joint physical care would require Abby and the children to
periodically accommodate Jake’s work schedule and that Jake was seeking to
trade time he would miss due to work obligations. And as required by section
598.41(5)(a), our focus remains on the best interests of the children, not
accommodations for Jake.
“In determining which parent serves the child[ren]’s best interests, the
objective is to place the child[ren] in an environment most likely to bring the
child[ren] to healthy physical, mental, and social maturity.” In re Marriage of
Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). “Determining what custodial
arrangement will best serve the long-range interest of a child frequently becomes
a matter of choosing the least detrimental available alternative for safeguarding
the child’s growth and development.” In re Marriage of Winter, 233 N.W.2d 165,
167 (Iowa 1974). Upon our de novo review of the record and consideration of the
Hansen factors and other relevant matters,5 we agree with the district court that
5 “The factors the court considers in awarding custody are enumerated in Iowa
Code section 598.41(3).” Courtade, 560 N.W.2d at 37 . “Although Iowa Code
section 598.41(3) does not directly apply to physical care decisions, . . . the factors
listed here as well as other facts and circumstances are relevant in determining”
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placing these children in Abby’s physical care best serves their interests and
specifically find and conclude a joint physical care arrangement would not be in
the best interests of the children. While we agree both parents are model ones,
and the lack of displayed animosity between them would foster a shared-care
arrangement, at the end of the day, we find placement in Abby’s physical care is
most likely to bring the children to healthy physical, mental, and social maturity.
B. Visitation
Jake alternatively requests an increase in his visitation. The court awarded
Jake three overnights every other weekend and one mid-week overnight per week.
He argues the court should have also afforded him “Thursday before weekends
when he does not have the children in his care.”
“A noncustodial parent should be awarded liberal visitation in order to afford
the children the opportunity to maximize continuing physical and emotional contact
with both parents.” In re Marriage of Farrell, 481 N.W.2d 528, 531 (Iowa Ct. App.
1991); accord Iowa Code § 598.41(1)(a). “Although liberal visitation is the
benchmark, our governing consideration in defining visitation rights is the best
physical care. Hansen, 733 N.W.2d at 696. We note our consideration of whether
each parent would be a suitable custodian, whether the children will suffer due to
lack of active contact with and attention from both parents, whether the parents
can effectively communicate about the children’s needs, whether both parents
have actively cared for the children, whether each parent can support the other’s
relationship with the children, whether one or both parents agree to or oppose
shared physical care, and the geographic proximity of the parents. See Iowa Code
§ 598.41(3)(a)–(e), (g), (h). We also note our consideration of the characteristics
of the children and parents, the children’s needs and the parents’ capacity and
interests in meeting the same, the relationships between the parents and children,
the effect of continuing or disrupting an existing physical-care arrangement, the
nature of each proposed environment, and any other relevant matter disclosed by
the evidence. See Winter, 223 N.W.2d at 166–67.
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interests of the children, not those of the parent seeking visitation.” In re Marriage
of Brainard, 523 N.W.2d 611, 615 (Iowa Ct. App. 1994).
Upon our de novo review of the record, we are not convinced increasing
Jake’s visitation would be in the best interests of the children. In light of his busy
work schedule, we find the district court’s visitation schedule promotes the goal
espoused by section 598.41(1)(a). The schedule provides Jake with liberal
visitation and is not unreasonable.6 Additionally, under the decree, the parties are
free to agree to additional visitation beyond the minimum amount. We affirm the
visitation schedule decreed by the district court.
C. Right of First Refusal
In his motion to reconsider, enlarge, or amend, Jake requested that a right-
of-first-refusal provision be added to the decree allow him the first opportunity to
care for the children when Abby is unable to do so during her parenting time. The
court denied that part of his motion. On appeal, Jake asks for a right of first refusal
to care for the children in the event Abby is unavailable to do so for twelve or more
hours. Abby acknowledges case law supports such a right for Jake but goes on
to argue it is unwarranted in this case, despite being “agreeable” in the district court
to such a provision. We disagree such a provision is inappropriate. We modify
the decree to provide Jake with a right of first refusal to care for the children in the
event Abby is unable to do so for twelve or more hours. Absent an emergency
situation, Abby shall provide Jake with twenty-four hours’ notice of such
6 Cf. In re Marriage of Gulsvig, 498 N.W.2d 725, 726–72 (Iowa Ct. App. 1993); In
re Marriage of Stepp, 485 N.W.2d 846, 850 (Iowa Ct. App. 1992); In re Marriage
of Drury, 475 N.W.2d 668, 671 (Iowa Ct. App. 1991); In re Marriage of Lacaeyse,
461 N.W.2d 475, 477 (Iowa Ct. App. 1990).
13
opportunity, and Jake shall respond within six hours. If Jake does not timely
respond, his right of first refusal shall be deemed waived.
D. Spousal Support
At trial, Jake specifically testified to his agreement that “Abby has some
need for spousal support for some period of time.” He also agreed, “I think a
thousand dollars a month from me in spousal support would be fair.” He proposed
paying said amount for “5 years.” He later testified he did not believe Abby would
need an award of spousal support if she was granted physical care of the children
because she would be receiving a large amount of child support. Abby requested
an award of transitional alimony in the amount of $1000.00 to $2000.00 until the
children graduated from high school, seven years.
The court, upon its understanding that Jake agreed to the same, awarded
Abby $1000.00 in transitional spousal support7 per month for five years. In Jake’s
motion to reconsider, enlarge, or amend, he requested the spousal support award
be eliminated given the court’s physical-care decision. The court reduced the
award to $350.00 per month for thirty months.
Both parties challenge the court’s spousal support award. Jake agreed
below that he should pay spousal support in the event the parties were awarded
7 Transitional spousal support has been described to apply:
where the recipient spouse may already have the capacity for self-
support at the time of dissolution but needs short-term assistance in
transitioning from married status to single status due to the economic
and situational consequences of dissolution. The critical
consideration is whether the recipient party has sufficient income
and/or liquid assets to transition from married life to single life without
undue hardship.
In re Marriage of Hansen, No. 17-0889, 2018 WL 4922992, at *17 (Iowa Ct. App.
Oct. 10, 2018) (McDonald, J., concurring specially).
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joint physical care of the children. While Abby argues the original award should
have been for seven years or life, she agrees “the court’s original award of
$1,000.00 per month for sixty . . . months is not out of line.”
Courts may grant an award of spousal support in a dissolution proceeding
for a limited or indefinite length of time after considering all of the following factors:
(a) The length of the marriage.
(b) The age and physical and emotional health of the parties.
(c) The distribution of property made pursuant to section
598.21.
(d) The educational level of each party at the time of
marriage and at the time the action is commenced.
(e) The earning capacity of the party seeking maintenance,
including educational background, training, employment skills, work
experience, length of absence from the job market, responsibilities
for children under either an award of custody or physical care, and
the time and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
(f) The feasibility of the party seeking maintenance becoming
self-supporting at a standard of living reasonably comparable to
that enjoyed during the marriage, and the length of time necessary
to achieve this goal.
(g) The tax consequences to each party.
....
(j) Other factors the court may determine to be relevant in an
individual case.
Iowa Code § 598.21A(1).
Having considered the foregoing factors, we conclude Abby will suffer
financial hardship transitioning to single life and needs short-term assistance due
to the economic and situational consequences of dissolution and an award of
spousal support is appropriate. But we find the district court’s award inadequate.
We modify the decree to award Abby spousal support in the amount of $650.00
per month for three years from the time of the entry of the decree.
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E. Retirement Benefits
Finally, Abby challenges the award of a portion of her pre- and post-
retirement death benefits to Jake as inequitable. During trial, Jake testified that he
and Abby had agreed to divide her IPERS account by using a QDRO and he
submitted to the court his proposed language, which included listing him as
“surviving spouse for pre-retirement benefits as well as post-retirement.” Abby
testified that she agreed her IPERS was to be divided by a QDRO. Her IPERS
benefits statement was also submitted to the court and included an explanation
concerning death benefits and possible effects of a QDRO and a beneficiary
designation. She offered no testimony concerning pre-retirement benefits or post-
retirement benefits. Nor did she challenge any of the proposed terms set forth in
Jake’s proposed language.
In the court’s decree, it awarded the IPERS account through entry of “a
QDRO containing the terms and conditions outlined in” Jakes exhibit containing
his proposed language. In her motion to reconsider, enlarge, or amend pursuant
to rule 1.904(2), Abby did not object to the court’s treatment of the IPERS account
or offer any argument or claim the court’s disposition of IPERS was inequitable.
Based on the record made before the district court, we cannot say the court failed
to do equity as to the IPERS distribution.
F. Child Support
Our modification of the spousal-support award of the decree necessitates a
recalculation of child support. As neither party has applied for a stay of the decree
pending appeal, see Iowa R. App. P. 6.604, we assume the parties have been
following the physical-care arrangement and abiding by the child- and spousal-
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support obligations imposed by the district court. Given Jake’s promotion shortly
before trial, his highly fluctuating income in recent years, and the uncertainty of
Jake’s annual bonus, we remand the matter to the district court for determination
of past and future child-support obligations following procedendo. See In re
Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015) (noting child-support
obligations should be “based on the present financial circumstances of the
parties”); In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994). The past
award should factor in the retroactive modification of Jake’s spousal-support
obligation. The future award should also reflect said modification and consider the
parties’ current incomes.
IV. Conclusion
We affirm the district court’s physical-care decision and its visitation
schedule. We modify the decree to provide Jake with a right of first refusal to care
for the children in the event Abby is unable to do so for twelve or more hours. We
further modify the decree to award Abby spousal support in the amount of $650.00
per month for three years from the time of the entry of the decree. Based on the
record made before the district court, we cannot say the court failed to do equity
as to the IPERS distribution. Given the modification in spousal support, we remand
the matter to the district court for a recalculation of child support. Costs on appeal
are assessed to Jake.
AFFIRMED AS MODIFIED ON BOTH APPEALS AND REMANDED.