IN THE COURT OF APPEALS OF IOWA
No. 13-1156
Filed November 26, 2014
IN RE THE MARRIAGE OF LONNIE J. MAYNES
AND CATHY MAYNES
Upon the Petition of
LONNIE J. MAYNES,
Petitioner-Appellant/Cross-Appellee,
And Concerning
CATHY MAYNES,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Taylor County, Sherman W.
Phipps, Judge.
A husband appeals from a decree of dissolution. The wife cross-appeals.
AFFIRMED ON BOTH APPEALS AS MODIFIED.
Jamie E. Kinkaid of Cordell Law, L.L.P., Omaha, Nebraska, for appellant.
Michael J. Winter, Council Bluffs, for appellee.
Heard by Mullins, P.J., and Bower and McDonald, JJ.
2
MULLINS, J.
Lonnie Maynes appeals the district court’s decree of dissolution of his
marriage to Cathy Maynes. He contends the district court erred in (1) finding
Lonnie dissipated marital assets and ordering him to pay Cathy half the
dissipated funds, (2) dividing the marital property inequitably by incorrectly
valuing and distributing several marital assets, (3) awarding Cathy spousal
support inequitably, and (4) awarding Lonnie child support without imputing
income to Cathy. Cathy cross-appeals contending (1) the award of spousal
support should have been higher, (2) she should have been awarded physical
care of the parties’ minor child, and (3) Lonnie should have been ordered to
purchase life insurance with death benefits to meet his spousal support
obligation. Both parties request attorney fees.
Upon our review of the record, we find Lonnie did not dissipate marital
assets in constructing a storage building for his business operations, and we
affirm the district court in all other respects.
I. FACTS AND BACKGROUND PROCEEDINGS.
Lonnie and Cathy were married in 1994, but had lived together since
1984. Cathy has an adult son (born in 1984) from a prior relationship. The
parties together have an adult daughter (born in 1993), an adult son (born in
1994), and a minor daughter (born in 2003.)
Lonnie farms and drives a truck. During most of the marriage, he worked
very long hours, as much as one hundred hours per week. At the beginning of
the marriage, Cathy operated a cleaning business and worked as a clerk at a
3
convenience store. The parties later agreed Cathy would stay at home with the
children until they reached school age. Nevertheless, although their youngest is
school aged, Cathy did not return to work.
In January 2012, Lonnie filed a petition for dissolution of the marriage.
The court held trial over five days in December 2012 and January 2013. In its
ruling and decree, the court specifically found that Cathy’s testimony was
generally not credible. It awarded the parties joint legal custody of the minor
child but granted physical care to Lonnie with visitation to Cathy. It ordered
Cathy to pay Lonnie $146 per month in child support. It divided the substantial
marital estate and ordered Lonnie to pay Cathy $1500 per month in spousal
support for a period of seven years. The court also found that prior to filing the
dissolution action Lonnie dissipated marital assets by constructing a storage
building on the parties’ land, and ordered Lonnie to pay Cathy half the cost of
construction. Lonnie appeals from the decree and Cathy cross-appeals.
II. SCOPE OF REVIEW.
We review de novo an action to modify a dissolution decree as it is heard
in equity. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d 47, 50
(Iowa Ct. App. 2009). Because of its ability to see and hear witnesses firsthand,
we give weight to the factual findings of the district court, especially in its
assessments of credibility, though we are not bound by those findings. Iowa R.
App. P. 6.904 (3)(g). Case precedent has little value as we must base our
decision on the particular circumstances of the case before us. Melchiori v. Kooi,
644 N.W.2d 365, 368 (Iowa Ct. App. 2002).
4
III. ANALYSIS.
A. Property Division.
We examine the entire record and adjudicate anew the issue of property
distribution. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).
We will disturb the district court’s ruling only when there has been a failure to do
equity. Id. Marital property is divided equitably, considering the factors in Iowa
Code section 589.21(5) (2011). Id. at 678. “An equitable distribution of marital
property, based upon the factors in 598.21(5), does not require an equal division
of assets.” Id. at 682 (quoting In re Marriage of Kimbro, 836 N.W.2d 696, 703
(Iowa 2013)). “Equality is, however, most often equitable,” and Iowa courts
generally insist upon equal or nearly equal division of marital assets. Id. We
keep in mind that “there are no hard and fast rules governing economic issues in
dissolution actions.” Id. Our decision depends on the particular facts relevant to
each case. Id.Lonnie and Cathy owned substantial farmland, farming equipment, and
trucking equipment. Lonnie intends to continue farming and truck driving as his
main businesses. The district court awarded him the land and almost all the
equipment and assigned him the debts associated with such property. It
awarded Cathy two vehicles, a bank account, and some personal property.
Thus, the division of marital property resulted in Lonnie receiving net property
valued at $1,608,957.18 and Connie receiving net property valued at $38,732.00.
5
The court ordered Lonnie to make an equalization payment to Cathy of
$785,112.59, giving each party a net total of $823,844.59.1
1. Dissipation of Marital Assets in the Morton Building.
Lonnie contends the district court erred in finding he dissipated marital
assets by constructing the Morton building and awarding Cathy half the funds
spent on the building. The Morton building is a storage shed-type structure
located on a two-acre parcel of land the parties owned in Taylor County, where
the marital home also is located. Lonnie uses the Morton building for his farming
and trucking operations. Lonnie took out a loan to finance the building, and it
was constructed in early 2009. Lonnie and Cathy separated in February 2012,
so while the building was under construction, both Lonnie and Cathy were living
in the marital home on the same two-acre parcel in Taylor County. On
November 21, 2012, shortly before the beginning of the dissolution trial in
December 2012, Lonnie paid off the remaining balance on the construction loan,
$29,790.68, using marital funds. The total cost of the building was $189,790.68.
The district court found Lonnie had dissipated marital assets in building the
Morton building stating:
Lonnie borrowed $39,282 in order to construct the Morton
building. Therefore, he apparently expended approximately
$160,000[2] of the parties’ joint assets in order to construct the
1
The district court ordered Lonnie to make an initial payment of $250,000 within sixty
days of the decree. It ordered Lonnie to pay the remainder of the settlement in annual
installments of $28,250.77 continuing each year until the settlement is paid in full. It also
ordered that the outstanding balance of the judgment accrues interest at a rate of 2.5%.
2
Although the total cost of the building was $189,790, the court found Lonnie borrowed
$39,282 and paid cash “approximately $160,000,” which equals $199,282. We note the
discrepancy but make no effort to reconcile the difference given our disposition of this
issue.
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building. The record reflects the building was built for Lonnie’s
convenience in the operation of his various business endeavors
(trucking and farming) and continues to be used for operation of
Lonnie’s businesses. There is no evidence that Cathy had any
input in the decision to construct the building or consented thereto.
....
The Court also finds that the money spent for the Morton
building was from joint funds, was spent solely for Lonnie’s benefit,
to his use, and will have a continuing value to Lonnie in the conduct
of his business enterprises. The Morton building was a disposition
of joint funds without joint consent of the parties. Cathy is entitled
to one-half of the joint funds expended and/or converted into the
Morton building (one-half total amount of $189,790.68 is
$94,895.34).[3]
Lonnie contends the court erred in awarding Cathy half the cost of the Morton
building because there was no evidence of dissipation of marital assets. He also
contends the court erred in its assessment of the value of the property, ordering
him to pay Cathy more than it found the building to be worth.
Dissipation of marital assets occurs where a spouse’s conduct during the
separation results in the loss or disposal of property otherwise subject to division
at the time of the dissolution. Kimbro, 826 N.W.2d at 700-01. When an asset
has been dissipated in contemplation of dissolution, the district court includes the
asset in the marital estate and awards the asset to the spouse who wasted it. Id.
3
The court affirmed its finding in its ruling on the parties’ motions filed pursuant to Iowa
Rule of Civil Procedure 1.904(2), stating:
[I]t is clear that Lonnie began planning for this dissolution quite some time
before actually filing the Petition herein. He dramatically changed his
entire pattern of living at a distinct point several years before filing the
Petition. He quit working long hours, began involving himself with the
daily care of the children, and began arranging his business affairs to his
advantage upon filing of the Petition.
As discussed below, in our view, Lonnie began taking over more childcare
responsibilities following Cathy’s abdication of the minor daughter’s care to the older
daughter. He did reduce his work hours in order to do so.
7
at 701. The doctrine of dissipation does not apply if the spending spouse used
the asset for legitimate household and business expenses. Id.
We apply a two-pronged test when analyzing claims arising under the
dissipation doctrine. Id. The court must decide whether the alleged purpose of
the expenditure is supported by the evidence and whether that purpose amounts
to dissipation. Id. We identify dissipation using the following factors:
(1) The proximity of the expenditure to the parties’ separation, (2)
whether the expenditure was typical of expenditures made by the
parties prior to the breakdown of the marriage, (3) whether the
expenditure benefited the “joint” marital enterprise or was for the
benefit of one spouse to the exclusion of the other, and (4) the
need for, and the amount of, the expenditure.
Kimbro, 826 N.W.2d at 701. Lonnie asserts, and Cathy does not contest, that
the Morton building was used for Lonnie’s business. This assertion is supported
in the record by testimony that the building was used to store Lonnie’s semi-
truck, tractors, planters, and other farm equipment. The record discloses Cathy
had nothing to do with the operation of Lonnie’s business and did not participate
in making business decisions. The district court also concluded the building
added value to Lonnie’s business operations.
In addition, construction on the building occurred in 2009, three years
before the parties separated and Lonnie filed his dissolution action. For three
years prior to the filing of the dissolution action, the marital unit—including
Cathy—benefited from the increased productivity the Morton building presumably
provided for Lonnie’s business interests. Further, the record discloses Cathy and
Lonnie lived a relatively frugal life—their largest expenditures and assets were
farm and trucking equipment for Lonnie’s business. The Morton building is not
8
atypical of the expenditures that were made in order for Lonnie to make a good
income for the benefit of the marriage. Although the district court found Cathy
did not give her consent to the use of the marital assets to construct the building,
we find, upon our review of the appropriate factors to consider as to whether
dissipation occurred, they weigh against a determination that Lonnie dissipated
assets with the construction of the Morton building. See id.
The only argument of avail to Cathy is that Lonnie made a precipitous
payment of the remainder of the debt on the building shortly before trial. Our
supreme court discussed expenditures made very shortly before trial in In re
Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007). In Fennelly, the husband in
the dissolution accelerated his purchases on a joint credit card, charging over
$20,000 in various expenses. Fennelly, 737 N.W.2d at 105. The supreme court
found he dissipated marital assets by adding additional debt to the marital
estate—in short, the parties’ assets would eventually be needed to repay the
debt created. Id. The case before us is distinguishable from Fennelly in that
Lonnie used existing marital assets to pay down existing marital debt—he did not
create new debt that would require payment from the remaining marital assets.
There was therefore no loss or disposal of marital property because the payment
of cash was offset by reduction of debt. Had he not done so, the debt would
have been distributed between the parties in the division of property anyway.
The expenditure also was related to a business purpose.
For the forgoing reasons, we conclude that Lonnie did not dissipate
marital assets. Therefore, Connie is not entitled to a separate recovery of any
9
portion of the costs expended in the construction of the Morton building. We
modify the decree accordingly.
2. Valuation of Union County Property.
Lonnie contends the district court erred in its valuation of a 271-acre
parcel of land in Union County by relying on the testimony of Cathy’s appraiser
rather than that of Lonnie’s appraiser. Lonnie’s appraiser, Kenneth Mallas,
testified the land was worth $1,418,574; Cathy’s appraiser, Donald Kern, testified
it was worth $1,768,200. The district court made the following findings:
Lonnie’s appraiser, Kenneth Mallas, was recommended by
Rick Schmitz, the agricultural loan officer at First National Bank,
and concluded the farmland was worth $1,418,574 as of May 31,
2012. Mr. Mallas appraises land primarily in Union, Adams, and
Taylor Counties. He also owns farmland in Adams, Taylor, and
Union counties, including one parcel that adjoins the smaller track
of the parties’ farm ground. Mr. Mallas testified he is very familiar
with farmland and its value in Union County. Until two years ago,
Mr. Mallas completed approximately two-thirds of First National
Bank’s appraisals. According to Mr. Schmitz, except for a change
in banking regulations at that time, Mr. Mallas would have
continued to appraise the majority of the farmland for First National
Bank’s loans. Mr. Schmitz recommended Mr. Mallas [to Lonnie] to
appraise the parties’ property because he knew Mr. Mallas was
familiar with farmland in Union County, he’d had good luck with him
in the past, and liked that Mr. Mallas uses comparables in the same
county as the subject property and does not consider the highest or
lowest sales in his appraisals. Mr. Mallas testified the value of
farmland in Union County may have increased between 2 and 3
percent since he completed his appraisal. Mr. Schmitz
corroborated Mr. Mallas’ sentiment and believed the value of
farmland in Union County increased between 3 and 5 percent since
June 2012. Mr. Mallas is employed by a company owned by
Lonnie’s first cousin and has been so employed since 1994.
Lonnie and Mr. Schmitz seem to have a long-standing business
relationship that works to their mutual benefit. Mr. Schmitz, or his
employer, stands to gain from supporting Lonnie’s position in this
case.
Cathy’s appraiser, Donald Kearn, concluded the parties’
farm ground was worth $1,768,200 as of June 19, 2012. Mr.
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Kearn’s primary business operations are in southwest Iowa. Mr.
Kearn claimed the value of the property had increased 2.2 percent
per month since June 2012 (or 13.2 percent at the time of Trial).
However, in reaching this conclusion, he considered the value
changes of farmland in Taylor, Pottawattamie, and Montgomery
Counties. There was testimony from Mr. Mallas at Trial that the
Union County farm the parties own is not similar to the land in
Taylor, Pottawattamie, and Montgomery Counties and that land
values can vary significantly even in the same county. Mr. Kearn
has no relationship to either party, and the Court considers his
appraisal to be much less subject to bias than the appraisal of Mr.
Mallas or the opinions of Mr. Schmitz.
Lonnie asserts the court erred in relying on Kearn’s testimony because both
appraisers are qualified, and because Mallas had more experience with Union
County farmland. He further argues “the court did not make a finding Kenneth
Mallas lacked credibility.”
“Although our review is de novo, we will defer to the trial court when
valuations are accompanied with supporting credibility findings or corroborating
evidence.” In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999).
Here, the court thoroughly weighed the relative expertise of the two appraisers.
Although the court did not explicitly state it found Mallas lacked credibility, it
found his appraisal was more susceptible to bias as a result of his personal
business interests than Kearn’s. This is a valid credibility determination that is
supported by facts in the record. Kearn also testified Mallas’s estimate was
inaccurate because Mallas considered comparable property sales that occurred
between immediate family members which, in Kearn’s opinion, did not reflect the
true market value of those properties. Kearn also generally used comparable
property sales that were more recent than those Mallas used. Accordingly, we
11
defer to the trial court, and affirm its valuation of the Union County farmland
consistent with Kearn’s testimony.4
3. Income Tax Refund.
Lonnie contends the district court erred in ordering him to pay Cathy half
the refund from their 2012 tax return. He contends the award is in error because
the funds are used for the operation of the business. Cathy responds the issue
was not preserved,
Lonnie borrowed $302,533 to pay the parties’ 2012 income taxes. Both
parties listed that loan as part of the marital debt. Distribution of that debt,
therefore, was an issue both parties presented as subject to the district court’s
resolution. The court recognized that the presumed tax obligation was
contingent on the processing and final determination by the Iowa and Federal tax
authorities, leaving a possibility that after the tax returns were processed there
could be a tax refund. If there were a refund of some portion of that tax that was
paid by the proceeds of the tax loan, then any refund—i.e. reduction of that
ultimate debt obligation—was subject to distribution by the court. With the issues
of asset and debt distribution clearly before the district court, Cathy’s argument
that the issue was not preserved for appeal is misplaced. The district court ruled
that if there were a tax refund, Cathy was entitled to one-half the amount of the
4
With respect to the testimony that the value of the land had increased over the
intervening years, the district court found, “[E]vidence as to the increase in value since
that time was not as clear and appears to be a rough estimate. Because the evidence
as to any increase is not clear, but speculative, it will not be considered by the Court.
The Court concludes the farmland is worth $1,768,200.” We find no reason to disturb
this conclusion.
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refund, and ordered Lonnie to make the payment accordingly. This division of
the tax refund is not inequitable.
B. Spousal Support.
“Whether spousal support is justified is dependent on the facts of the
case.” In re Marriage of Hazen, 778 N.W.2d 55, 61 (Iowa Ct. App. 2009). “Even
though our review is de novo, we accord the trial court considerable latitude in
making this determination and will disturb the ruling only when there has been a
failure to do equity.” In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa
1996). The court considers the factors set out in Iowa Code section 598.21A(1)
to determine the amount of spousal support.5
In applying the statutory factors, there are three types of spousal support
the court may award. In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa
5
These factors include:
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.
h. Any mutual agreement made by the parties concerning financial or
service contributions by one party with the expectation of future
reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an individual
case.
13
2008). Traditional spousal support is payable for life or for so long as the spouse
is incapable of self-support. Id. Rehabilitative spousal support is a way of
supporting an economically dependent spouse through a limited period of re-
education or retraining following divorce. Id. Reimbursement support allows the
spouse receiving support to share in the other spouse’s future earnings in
exchange for the receiving spouse’s contributions to the source of that income.
Id. “Property division and alimony must be considered together in evaluating
their sufficiency. In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa Ct. App.
1984).
The district court awarded Cathy $1500 per month in spousal support for
seven years. Within seven years, the support obligation terminates on the earlier
of Lonnie’s death, Cathy’s death, or Cathy’s remarriage. Lonnie contends the
district court erred in failing to include Cathy’s imputed employment income in its
calculations. He also contends the award was inequitable in light of Cathy’s
choice to remain unemployed and the substantial property settlement. Cathy
cross-appeals arguing the award should have been higher and for longer
duration.
1. Equity of the Award.
Lonnie contends the spousal support award is inequitable where the
district court found Cathy was capable of full-time, minimum-wage work and yet
chose not to work. He also argues the award was inequitable in light of the
substantial property settlement. On her cross-appeal, Cathy also contends the
spousal support award was inequitable and should have been higher. Cathy
14
complains that the court’s support award is a hybrid that is neither traditional nor
rehabilitative and that the court should have given her a larger award of
traditional alimony payable until her death or remarriage.
Prior to trial, the parties stipulated Lonnie’s yearly salary was $94,478.
When the parties married, Cathy operated a cleaning business and worked as a
check-out clerk at a convenience store. When their children arrived, the parties
agreed that Cathy would be a stay-at-home parent until their youngest was
school-aged. However, Cathy never did return to work. Cathy claims she has a
number of health issues that affect her ability to work. 6 The district court made
the following findings:
Cathy has the possibility of employment close to home. . . .
Cathy acknowledged that she could work as a maid if she
did not have to lift a mattress. Cathy also testified that both before
and after the dissolution proceedings started, she considered
working the night shift at Casey’s [convenience store] because she
thought she could do the work even with her health problems.
Although Cathy obtained an employment application from Casey’s,
she never made any other effort to obtain employment with Casey’s
or anywhere else while this dissolution was pending. Her present
status as unemployed seems to be one she chooses rather than
based on health problems, as she tries to imply.
While Cathy has not been employed outside the home for a
number of years, the Court concludes that she could earn at least
6
The district court dismissed Cathy’s claims of poor health, stating:
Cathy has a fallen bladder, a rectal prolapse, and back problems.
However, she is still able to bowl, jog, power walk, and lift less than 20
pounds. Cathy testified surgery is needed to correct her fallen bladder
and rectal prolapse.
....
Despite the fact that these dissolution proceedings have been
pending since January 2012, Cathy has done nothing to treat her alleged
health issues so she might be able to obtain employment or to obtain
employment that will accommodate her alleged health issues. . . .
Cathy’s present status as unemployed appears to the Court to be a status
she voluntarily elects and prefers.
15
minimum wage ($7.25 per hour) and work 40 hours per week. In
determining Cathy’s ability to pay child support and her need for
alimony, the Court will calculate Cathy’s annual income at $15,080
($7.25 per hour x 40 hours per week x 52 weeks per year).
In awarding the spousal support, the district court stated:
The Court believes that Cathy will need some financial
assistance to become self-supporting. By all accounts, the parties
do not live an extravagant lifestyle. There is no reason that Cathy
should have a better standard of living now than the parties enjoyed
during their marriage.
....
While the Court concludes an alimony award is appropriate
in this case because of Cathy’s absence from the job market, the
question is how much alimony should she be awarded and for how
long. . . . After considering Lonnie’s stipulated income, Cathy’s
ability to become employed full-time, and the property settlement
herein, the Court concludes Lonnie should pay Cathy alimony of
$1,500 per month for seven years.
(Internal citations omitted.)
By its language, we regard the court’s order to be for rehabilitative spousal
support, which continues for a limited period of time allowing the supported
spouse to resume self-support. See Becker, 756 N.W.2d at 826. Specifically,
the court stated Cathy would need “some financial assistance to become self-
supporting.” Cathy and Lonnie were married for nineteen years. At the time of
the dissolution, he was fifty-three and she was forty-nine years old. They are
both in reasonably good health. Cathy is able to work full-time despite her
asserted health problems. Cathy did work as a cleaner and a convenience store
clerk before their marriage, and could return to similar work. The court explicitly
stated it considered Cathy’s ability to become employed full-time. It also
projected her income to be $15,080 per year based on the minimum wage.
Cathy also received an equal portion of the substantial marital estate in the
16
property division, which she will be receiving in cash equalization payments,
rather than items of real or personal property. Neither she nor Lonnie have any
education beyond high school, and they are unlikely to obtain more. The parties
lived frugally during their marriage, and Cathy could maintain a comparable
standard of living on her minimum-wage salary and the substantial property
award. We find no inequity in the court’s determination of the amount or duration
of the spousal support award.
2. Life Insurance for Spousal Support Obligation.
Cathy contends the district court should have ordered Lonnie to maintain
life insurance with death benefits to secure his spousal support obligation should
he die prior to the end of the seven years. Cathy raises no further argument than
that it is common for courts to so order. The court specifically stated the
obligation terminated upon Lonnie’s death. We find nothing inequitable in this,
especially as the spousal support award is limited to just seven years as
rehabilitative support.
C. Child Custody.
In matters of child custody, the first and governing consideration of the
court is the best interests of the child. Iowa R. App. P. 6.904(3)(o). Prior cases
have little precedential value, except to provide a framework for analysis; we
must base our decision on the facts and circumstances before us. In re Marriage
of Will, 489 N.W.2d 394, 397 (Iowa 1992). The Iowa Code provides a
nonexclusive list of factors the court shall consider in determining a custodial
arrangement. See Iowa Code § 598.41(3). In addition to the statutory factors,
17
the court also must consider the factors identified in In re Marriage of Winter, 223
N.W.2d 165, 166-67 (Iowa 1974), in determining the award of physical care.7
See Will, 489 N.W.2d at 398. “The ultimate objective of a physical care
determination is to place the child in the environment most likely to bring him to
healthy mental, physical, and social maturity.” McKee v. Dicus, 785 N.W.2d 733,
737 (Iowa Ct. App. 2010). The question of physical care must be determined
based on what is in the best interest of the child, not what is fair to the parents.
In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Stability and
continuity in caregiving are primary factors in determining an award of physical
care. Id. at 969. Past caretaking patterns, including primary caregiving, weigh
heavily in custody matters. Id.; In re Marriage of Decker, 666 N.W.2d 175, 178-
180 (Iowa Ct. App. 2003).
7
These factors are:
1. The characteristics of each child, including age, maturity, mental and
physical health.
2. The emotional, social, moral, material, and educational needs of the
child.
3. The characteristics of each parent, including age, character, stability,
mental and physical health.
4. The capacity and interest of each parent to provide for the emotional,
social, moral, material, and educational needs of the child.
5. The interpersonal relationship between the child and each parent.
6. The interpersonal relationship between the child and its siblings.
7. The effect on the child of continuing or disrupting an existing custodial
status.
8. The nature of each proposed environment, including its stability and
wholesomeness.
9. The preference of the child, if the child is of sufficient age and
maturity.
10. The report and recommendation of the attorney for the child or other
independent investigator.
11. Available alternatives.
12. Any other relevant matter the evidence in a particular case may
disclose.
Winter, 223 N.W.2d at 166–67.
18
The district court awarded the parties joint custody and Lonnie physical
care of the parties’ minor daughter, C.M. C.M. was nine years old at the time of
trial. In her cross-appeal, Cathy contends the court should have awarded her
physical care.
When the parties’ two older children, Cayla (born 1993) and Clelland (born
1994) were young, Cathy did not work but provided all their care and managed
the household. During that time, Lonnie worked as much as one hundred hours
per week and did not spend much time caring for the children. C.M. was born in
2003, and Cathy continued to be the primary childcare giver until C.M. reached
school age. When C.M. started going to school, Cathy began traveling to
Osceola, about an hour away, several days each week to gamble at a casino. At
trial, Cathy testified she was still traveling to Osceola to gamble two or three
times a week. The district court found that when Cathy began gambling
regularly, she delegated most of C.M.’s care to her older daughter, Cayla.
Lonnie testified that since C.M. was five, Cathy has had very little involvement in
caring for her. Cayla was responsible for cooking for C.M., helping her with her
homework, doing her laundry, and driving her to and from school or
extracurricular activities.
At the same time, Lonnie began cutting back his work hours to spend
more time with C.M. and began taking over more of her care. Thus, for the three
or four years prior to trial, C.M.’s primary caregivers have been Lonnie and
Cayla. In 2011, Cayla moved away to attend college, and Lonnie became C.M.’s
primary caregiver. The temporary pre-dissolution order also placed C.M. in
19
Lonnie’s care. By all accounts, C.M. is thriving under this arrangement. She is
involved in several sports and extracurricular activities. Lonnie is the parent who
takes her to these events and attends them with her; Cathy rarely attended such
events. Lonnie and C.M. continue to live in the marital home where C.M. has
always lived. Lonnie has scheduled and attended her doctor and dental
appointments and haircuts. He takes her to church. C.M. is doing very well in
school and has had no absences or tardy days since being in Lonnie’s care.
Lonnie encourages C.M. to pursue higher education, and C.M. looks to Cayla as
a role model in going to college. Cathy did not encourage Cayla or Clelland to go
to college.
In the three or four years prior to trial, Lonnie cut back his trucking hours
so that he is able to take C.M. to school in the morning and pick her up in the
afternoon. He does not need to use any other child care provider except during
planting and harvesting times. At planting time in the spring, he is busy for about
four weeks; at harvesting time, he is busy for about six to seven weeks. During
these times, he has a large extended family support network to help him,
including his brother, sister, and mother. C.M. has cousins to play with around
the same age and is close with her extended family. Lonnie also takes C.M. to
visit with Cathy’s mother.
Although they are both away at college, Cayla and Clelland maintain a
close relationship with C.M., especially Cayla. Cayla talks daily with C.M. Cayla
and Clelland regularly come home on weekends to see Lonnie and C.M. Lonnie
takes C.M. to Maryville, Missouri, where Cayla and Clelland go to college, once a
20
week to have supper with them. Cayla and Clelland have had a rocky and
hostile relationship with Cathy and are now estranged from her.8 They described
Cathy as being verbally abusive to them and C.M. They testified Cathy swears
and smokes in front of them and C.M. Cathy testified that if she had physical
care, she would help maintain C.M.’s relationship with her siblings, but the district
court did not find that claim credible. Lonnie testified he was concerned Cathy
would not allow C.M. to have contact with her siblings, especially with Clelland.
Cathy also testified at the trial she had been dating someone since June 2012
and has allowed her paramour to spend time with C.M. Lonnie testified he has
not dated anyone through the dissolution proceeding.
Although Cathy was the primary childcare and housework provider
throughout most of the marriage, it appears over the last few years she has
prioritized her entertainment over her daughter’s care. She has not been much
involved in C.M.’s care since C.M. started school. We are also persuaded by the
record and the district court’s credibility determination that Cathy will not support
and promote C.M. having frequent contact with her siblings, relationships which
have been particularly important to C.M. Lonnie has been providing stable,
consistent, thoughtful, and nurturing care, clearly showing C.M. is his priority, and
she is thriving under this arrangement. We are convinced C.M.’s interests are
best served by maintaining her physical care with Lonnie. This is the
8
The court found Cayla and Clelland have repudiated Cathy and did not order Cathy to
contribute to payment of their post-secondary education costs. The court did order
Lonnie to pay one-third of the costs. Lonnie had already been paying their full college
costs.
21
environment most likely to bring her to healthy mental, physical, and social
maturity. See McKee, 785 N.W.2d at 737.
Cathy further contends that when Lonnie is in need of child care—
particularly during his busy planting and harvesting times—she should be given
the right of first refusal, rather than employing a third-party caregiver. It is clear
from the record that Lonnie does not often need regular childcare and when he
does he relies on his family with whom C.M. is close, an arrangement that
appears beneficial and agreeable to C.M. as well. The court did not order Lonnie
to give Cathy a right of first refusal and Cathy has reasonable visitation time. We
see no reason to disturb the existing arrangement.
Cathy also complains that she should be able to have private telephone
conversations with C.M. on a daily basis. She asserts in the past, conversations
with C.M. are placed on speakerphone. Although Cathy raised this complaint in
her 1.904(2) motion to the district court, the court did not make any specific
provision in the decree or 1.904(2) motion ruling for phone contact between
Cathy and C.M. Our court has modified a custody arrangement where a mother
removed the telephone from the home when she left so the children could not
call their father or grandparents,9 intercepted mail to the children from the father,
and took away gifts the father gave to the children. Downing, 432 N.W.2d at 694.
Our court has also modified a physical care arrangement where a mother refused
to let the father speak to the child over the telephone, failed to give the child the
9
In this case, one of the children suffered from a medical condition which could
potentially require emergency medical treatment and the mother’s removal of the
telephone made placing a 911 call impossible. In re Marriage of Downing, 432 N.W.2d
692, 694 (Iowa Ct. App. 1988).
22
father’s letters, failed to share information about the child’s health and education,
and refused to give the father additional visitation. Marriage of Nelson, No. 02-
1096, 2003 WL 1970399 at *1 (Iowa Ct. App. April 30, 2003). However, Cathy
does not cite any case involving less serious obstructions on contact, nor does
she cite any facts in the record indicating interference of such severity is
occurring in her telephone contact with C.M. Accordingly, we are not persuaded
to add the requested provision and affirm the custody and care arrangement as
ordered.
D. Child Support.10
Courts apply the Iowa Child Support Guidelines set out in Chapter 9 of the
Iowa Court Rules in determining the amount of child support. The court may not
deviate from the amount of child support yielded by the guidelines without a
written finding that the guidelines would be unjust or inappropriate. McDermott,
827 N.W.2d at 684. In applying the child support guidelines, the court must
determine the parents’ monthly income from the most reliable evidence
presented. In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). In so
doing, the court may impute income. See Iowa Ct. R. 9.11(4).
Lonnie contends the district court erred because, although it awarded
Cathy $1500 per month in spousal support and imputed her income as
10
Cathy contends Lonnie did not preserve this issue for appeal, asserting she could not
“find a place in the record or in post-trial motions where this issue was preserved.” In
their proposed child support guideline calculations, the parties gave two different
estimates for Cathy’s total income. The parties thus placed the determination of their
income as a fact in issue in the case and the court’s ruling addressed it. The issue was
preserved.
23
approximately $1256.6711 per month, it only considered her imputed income in
determining child support. He contends the court should have included the
spousal support in Cathy’s income for the purpose of calculating her child
support obligation.
In In re Marriage of Lalone, 469 N.W.2d 695, 697 (Iowa 1991), the district
court considered the amount of alimony paid to the custodial parent in
determining the noncustodial parent’s child support obligation because to do
otherwise would have resulted in “substantial injustice” to the noncustodial
parent. Our supreme court found that the guidelines give discretion to the district
court in setting child support, “if the court finds such adjustment necessary to
provide for the needs of the children and to do justice between the parties under
the special circumstances of the case.” Lalone, 469 N.W.2d at 697. In In re
Marriage of Miller, 475 N.W.2d 675, 679-80 (Iowa Ct. App. 1991), this court,
citing Lalone, found the trial court acted within its discretion where it did not
consider the noncustodial parent’s alimony obligation in calculating his child
support obligation. The trial court did not find that including the alimony
obligation would result in a substantial injustice to the paying parent. Miller, 475
N.W.2d at 680.
Here, the court specifically found, “[T]he Court does not believe it would
be fair or equitable to consider alimony in determining Cathy’s child support
obligation.” The district court was thus within its discretion to exclude the alimony
11
Monthly income based on yearly salary of $15,080, or full time at minimum wage.
24
from Cathy’s income in calculating the child support obligation. We will not
disturb the court’s ruling.
E. Attorney Fees.
“Attorney fees are not a matter of right, but rather rest in the court’s
discretion.” In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Factors
the court considers include “the needs of the party seeking the award, the ability
of the other party to pay, and the relative merits of the appeal.” Id. (quoting In re
Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993)). We may also consider
“whether the party making the request was obligated to defend the trial court’s
decision on appeal.” In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa 1981).
Lonnie and Cathy will each pay their own attorney fees and one half of the court
costs on appeal.
IV. CONCLUSION.
We conclude the district court improperly found that Lonnie dissipated
marital assets. We modify the decree to eliminate the requirement that he
reimburse Cathy for the expense of the Morton building. We further find the
district court properly valued and divided the marital property, including the Union
County property and the tax refund, and correctly ordered spousal and child
support. The district court also correctly awarded care of the minor child to
Lonnie. Accordingly, we affirm the decree as modified. Each party will pay their
own attorney fees and half of the court costs on appeal.
AFFIRMED ON BOTH APPEALS AS MODIFIED.