IN THE COURT OF APPEALS OF IOWA
No. 3-1252 / 13-0774
Filed April 16, 2014
IN RE THE MARRIAGE OF KARI L. FRANZEN
AND JOSHUA J. FRANZEN
Upon the Petition of
KARI L. FRANZEN,
Petitioner-Appellee,
And Concerning
JOSHUA L. FRANZEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Margaret L.
Lingreen, Judge.
A husband appeals the physical care, child support, and property
distribution provisions of the decree dissolving his marriage. AFFIRMED AS
MODIFIED.
Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for appellant.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, L.L.C.,
Decorah, for appellee.
Heard by Vogel, P.J., and Doyle and Mullins, JJ. Bower, J., takes no part.
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VOGEL, P.J.
Joshua Franzen appeals the provisions of the decree dissolving his
marriage to Kari Franzen. Joshua contends on appeal the district court should
have placed the minor children in the parties’ shared care rather than in Kari’s
physical care. In the event we do not modify the physical care provisions,
Joshua seeks an increase in his overnight visitation and a modification of his
child support. He also maintains the district court assigned an incorrect value to
the parties’ marital home and should not have ordered him to pay Kari a cash
settlement award in light of his premarital assets. Kari defends the district court
decree and asks for appellate attorney fees.
Because we find the best interests of the children are served by placing
them in Kari’s physical care subject to the visitation for Joshua ordered by the
court, we affirm the physical care provisions of the dissolution decree. We also
affirm the court’s child support order as we determine it correctly calculated the
parties’ incomes. We modify the property distribution to address an investment
account that was missed by the district court and remove the cash settlement
award to give Joshua credit for the premarital property he brought into the
marriage. Finally, we decline to award appellate attorney fees in this case.
I. Background Facts and Proceedings.
Joshua and Kari were married in 1997, at the age of twenty and nineteen,
respectively. Neither party came into the marriage with any significant premarital
asset, except for a $60,000 personal injury settlement Joshua received shortly
after the marriage that was the result of an automobile accident that occurred
prior to the marriage. Joshua asserts the funds were used to purchase two
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vehicles, make down payments on two of the family’s homes, and pay for Kari’s
college tuition/student loan debt.
The parties have two minor children born during the marriage, who were
five and three years old at the time of trial. Kari has operated her own interior
design business during the marriage, and Joshua has worked full time for
Blessing Industries earning $21.00 per hour. Both parties maintain they have a
flexible work schedule to permit them to care for the children as needed.
Insurance for the children is provided by Joshua through Hawk-I with a premium
of $20.00 per month.
The parties constructed the current martial home near Joshua’s parents’
residence. The parties signed a shared-well agreement with Joshua’s parents to
gain access to the well located on the parents’ property. The agreement is
applicable to their successors in interest. Joshua had an appraisal done of the
home which placed a value on the home of $250,000 and a value of $15,700 on
the adjoining property where Joshua maintains a vineyard. The appraisal noted
the shared-well agreement and provided the $250,000 value assumed the
current source of potable water would continue. If that situation were to change,
the value of the house would drop to $224,0001 due to the cost of drilling a new
well on the property.
The case proceeded to trial in January 2013, where both parties testified
along with family members, friends, and a clinical social worker, who provided
Joshua counseling services. The district court issued its decision on April 18,
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The appraiser estimated the cost to provide a new well and delivery system would be
approximately $26,000 based on bids he received.
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2013, granting the parties joint legal custody of the children and placing them in
Kari’s physical care subject to Joshua’s visitation rights, which include every
Tuesday evening, every Thursday overnight, and alternating weekends from
Friday evening until Sunday evening. The court also provided Joshua thirty
overnights during the summer in addition to his regular Thursday overnight and
alternating weekends. The court ordered the parties to alternate various
holidays. The court divided the property and debt, finding the value of the house
to be $250,000 and determining its value was not affected by the shared-well
agreement. The court also concluded Joshua was not entitled to have $60,000
in assets set aside to him as a result of the personal injury settlement. The court
noted the length of the marriage, the fact that both parties worked throughout the
marriage, and Kari’s role as the primary caregiver as the reasons for not
warranting a significant departure from a near equal distribution. Because of the
disparate property distribution, the court ordered Joshua to pay a cash settlement
to Kari in the amount of $22,000. Joshua filed a motion to enlarge, amend, or
modify the court’s decree, which was largely denied by the district court.2 Joshua
now appeals.
II. Scope and Standard of Review.
Our review of a dissolution action is de novo because the case was tried
in equity. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We
examine the entire record and adjudicate the issues anew, though we give
weight to the factual findings of the district court, especially its determinations of
2
The district court did provide a further explanation as to how it arrived at the annual
income amount for Kari, but it did not change the amount of the child support.
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credibility. Id. With respect to the property distribution, the district court’s
decision will be disturbed only where there has been a failure to do equity. Id.
When deciding what physical care arrangement should be ordered, we consider
the best interests of the children. In re Marriage of Fennelly, 737 N.W.2d 97, 101
(Iowa 2007).
III. Physical Care.
Joshua asserts the district court should have placed the children in the
parties’ shared care, rather than in Kari’s physical care. Contrary to the district
court’s finding, he contends the parties “provided appropriate and equal care for
the children” during the marriage. He contends the record shows there were
some communication issues but nothing significant related to the children that
would weigh against a shared care arrangement. He also points to the testimony
of his counselor, who stated in her opinion shared care is in the best interests of
the children.
The district court concluded Kari had historically been the parent providing
for the children’s needs, though it did acknowledge Joshua has participated in
caring for the children when they were sick and has shown himself able to
provide for the children’s needs. The court was concerned with Joshua’s inability
or unwillingness to communicate with Kari about the children, particularly his
taking the children to appointments with doctors, dentists, social workers, and
counselors without providing Kari notice. This occurred during the pendency of
the dissolution action after Kari had been designated as the physical care
provider in the temporary order. The court was also concerned that Joshua had
taken the children to a different church and had registered the younger child for
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preschool without consulting Kari. This lack of communication led the court to
determine joint physical care was not in the children’s best interests.
An important factor in determining whether joint physical care is in the
children’s best interest is the ability of the spouses to communicate and show
mutual respect. In re Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007).
The communication that occurred during the pendency of the dissolution was
concerning to the district court and clearly does not demonstrate the parties
mutually respect each other. Specifically, Joshua overwhelmed Kari with text
messaging about issues unrelated to the children. Kari went so far as to block
Joshua’s ability to send her text messages as she reported receiving as many as
forty-seven messages in an eight-hour period. In addition, Joshua did not
demonstrate respect for Kari as a co-parent when he scheduled the children for
various healthcare appointments without informing Kari. It is also concerning that
Kari needed to seek court intervention when Joshua failed to respond to her
requests to allow the children to attend her sister’s wedding during Joshua’s
visitation time, while she, by contrast, was willing to accommodate his additional
visitation requests. We agree with the district court’s assessment of the parties
and conclude it was correct in placing the children in Kari’s physical care.
As an alternative to shared care, Joshua asks that his visitation be
expanded. He asks that the additional visitation he requested in his motion to
reconsider be granted. This additional visitation would include an additional
overnight during the week occurring on Tuesdays, an additional fifteen days of
summer visitation, along with the ability to have the children for twelve
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consecutive nights. He also asked for increased holiday visitation. His requests
were denied by the district court.
We note the visitation schedule ordered by a court should provide the
children “the opportunity for the maximum continuing physical and emotional
contact with both parents.” See Iowa Code § 598.41(1)(a) (2011). The thirty
days of summertime visitation ordered by the court was in addition to Joshua’s
regular overnight visitation of every Thursday and every other weekend. The
court also provided that both parties were entitled to seven consecutive
uninterrupted overnights during the summer. We conclude this schedule does
provide for both parents to have maximum time with the children in the summer,
and we conclude it is not in the best interest of the children, especially
considering their young age, to grant Joshua’s request for twelve consecutive
uninterrupted nights during the summer. We note during trial both Joshua and
Kari contended that having a care arrangement where the children were away
from one parent for a week at a time was not in the children’s best interest. We
also agree with Kari that adding an additional overnight every Tuesday would
unnecessarily disrupt the children’s schedule and not be in their best interests.
We decline Joshua’s request to modify the visitation schedule.
IV. Child Support.
Joshua also asks that we modify the child support award. He contends
the court incorrectly calculated his and Kari’s income. He also asks that he be
permitted to claim both children as tax exemptions.
The district court concluded Joshua’s annual income for the purposes of
calculating child support was $53,345. This was based on Joshua’s 2012 year-
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to-date earnings along with overtime and profit sharing he had received. The
court concluded that while overtime and profit sharing were not guaranteed, both
were routinely awarded. Joshua asserts his profit sharing and overtime should
not be included in the calculation and claims his income should be based solely
on forty hours per week at $21.00 per hour.
Overtime and bonus income is to be considered in determining the
appropriate support amount under the child support guidelines. In re Marriage of
Kupferschmidt, 705 N.W.2d 327, 333 (Iowa Ct. App. 2005). However, “[i]n
circumstances where overtime pay appears to be an anomaly or is uncertain or
speculative, a deviation from the child support guidelines may be appropriate.”
Id. The overtime and bonus pay Joshua receives does not appear to be an
anomaly or speculative on the current record. We therefore find the district court
correctly determined his income based on the record presented.
Joshua also asserts Kari should not be allowed to deduct her health
insurance to reduce her net income from her design business. However, we note
the district court already specifically disallowed Kari’s deduction of her health
insurance premiums and her meal expenses. However, it did allow her other
expenses including the wages she pays to her support staff, office supplies,
advertisement, and liability insurance. Beside the health insurance, it is unclear
what expenses Joshua thinks should not be deducted from Kari’s gross income
from her business. Upon our review of the record, we conclude the district court
correctly determined her income for the purposes of calculating child support.
We note, as did the district court, that Joshua stipulated for he and Kari to
each claim one child as an income tax exemption. Joshua first indicated his
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desire for both tax exemptions in his posttrial motion for reconsideration. We
affirm the district court’s refusal to grant Joshua’s posttrial motion and thus affirm
the child support calculation.
V. Property Distribution.
Finally, Joshua challenges a number of findings by the district court with
respect to the property distribution. He contends the court should have reduced
the value of the home by the cost to install a new well because the current well
on his parent’s property, which is the subject of the shared-well agreement, is
inadequate and in need of repairs. He also asserts the court should have
accounted for the $4000 in mortgage payments he made since the parties
separated. He challenges the value the court assigned to the vehicle Kari
acquired during the pendency of the dissolution proceeding. He asserts the court
failed to acknowledge and distribute an account at John Hancock in the amount
of $7542.00.3 He challenges the value assigned to the First Citizens bank
accounts and claims he should not be required to make a property equalization
payment in light of the $60,000 personal injury settlement he brought into the
marriage.
Iowa is an equitable distribution state. In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). “All property of the marriage that exists at the
time of the divorce, other than gifts and inheritances to one spouse, is divisible
property.” Id. This includes property a party brings into a marriage. Id.
“Property brought into the marriage by a party is merely a factor to consider by
3
The parties stipulated the value of the account was $7542.00; however, the exhibit
admitted by Joshua in support of this account noted the value of the account was
$7303.22. We will use the parties’ stipulated amount.
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the court, together with all other factors, in exercising its role as an architect of an
equitable distribution of property at the end of the marriage.” Id. We refuse to
disturb the district court’s valuation of an asset where it is within the permissible
range of evidence. McDermott, 827 N.W.2d at 679.
With respect to the vehicle Kari acquired during the dissolution
proceeding, she testified it was worth $11,000. While Joshua asserted the
vehicle was worth $16,000, he admitted he did not have critical information about
the vehicle that would affect its value. We find the court’s valuation assigned to
the vehicle was within the permissible range of evidence, and we will not disturb
it here. See id. Similarly, we accept the court’s valuation of the First Citizens
accounts at $1268. Joshua points to the pretrial stipulation where he asserted—
but Kari did not agree—the accounts had a value of $200; however, Joshua
submitted an exhibit as evidence at trial which showed the accounts, as of
September 7, 2012, had a value of $1268.45. Had the value of the accounts
changed by the date of trial, Joshua failed to provide any more current
information. As the district court’s valuation is within the permissible range of
evidence, we accept it on appeal.
The John Hancock account was identified in the pretrial stipulation of the
parties, and it appears the parties agreed on the amount but did not agree as to
who should be assigned the value. During his trial testimony, Joshua agreed to
split the value of that account along with the other retirement accounts, but in his
posttrial motion, he requested he be awarded the value of the account. The
district court failed to identify and award the value of the account in its decision,
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and we therefore modify the decision to award one-half of the value of the John
Hancock account to each party.
The house was constructed with no independent access to water, but the
parties signed a shared-well agreement with Joshua’s parents where they would
draw water from the well on Joshua’s parents’ property and in exchange be
responsible for a proportion of the maintenance of the well. The agreement
contained the legal description of the three parcels the well would serve, so that it
would run with the land. While Joshua testified the well was no longer providing
adequate water and was in need of repair, Kari testified there was no need to
install a new well on the property. The appraiser’s report noted the cost of a new
well should be figured into the value of the home in the event the house’s source
of potable water would no longer continue. There was no evidence to support
Joshua’s assertion the well was in need of repair or replacement. Because the
shared-well agreement was transferable to future owners of the home, the district
court was correct in concluding the value should not be affected by the fact it
shares a well with Joshua’s parents. Further, no additional consideration should
be granted to Joshua in light of the mortgage payments he made during the
dissolution proceeding as he remained living in the home from August 2011 until
the time of trial in January 2013.
Finally, after distributing all assets and debt to the parties, the court
awarded Kari a cash settlement award of $22,000. A review of the assets and
debts indicates this settlement was due to the disparate value of net assets
assigned to each party. Kari’s distribution totaled approximately $36,000, while
Joshua’s distribution was approximately $80,000, making the difference $44,000.
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With our modification awarding each party one-half of the John Hancock account,
the difference remains the same though Kari’s net distribution increases to just
under $40,000 and Joshua’s distribution is just over $84,000.
However, Joshua asks that he not be ordered to make the cash settlement
payment in light of the $60,000 personal injury settlement he brought into the
marriage. The district court refused this request, concluding the length of the
marriage and the contribution of each party during the marriage did not justify
setting any of his premarital property aside. We disagree. Joshua testified he
used $22,000 of the settlement to make a down payment on the parties first
home and $14,000 of the settlement to make a down payment on the parties
second home. The remainder of the settlement money was used to purchase
vehicles and pay off Kari’s educational expenses. To the extent the money from
the settlement can be traced to a current asset of the parties, in this case the
homes the parties occupied during the marriage, we find it equitable that Joshua
be given consideration for these funds. It was due to Joshua’s substantial
infusion of cash to the marriage that put the parties in a favorable financial
position when purchasing their marital homes. Thus, we find it appropriate to
remove the requirement Joshua pay to Kari a cash settlement award to equalize
the property distribution. In light of Joshua’s premarital assets, it is equitable for
there to be a slightly unequal property distribution. See In re Marriage of Hazen,
778 N.W.2d 55, 59 (Iowa Ct. App. 2009) (“An equitable division does not
necessarily mean an equal division of each asset. Rather, the issue is what is
equitable under the circumstances.” (internal citation omitted)).
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We modify the decree to provide Joshua shall not be required to make a
cash settlement payment to Kari and the parties are to divide equally the value of
the John Hancock account. All other provisions of the property distribution are
affirmed.
VI. Appellate Attorney Fees.
Kari requests an award of appellate attorney fees in this matter.
An award of appellate attorney fees is not a matter of right but rests
within our discretion. In determining whether to award appellate
attorney fees, we consider the needs of the party making the
request, the ability of the other party to pay, and whether the party
making the request was obligated to defend the decision of the trial
court on appeal.
In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App. 1997). After
considering these factors, we decline to award appellate attorney fees in this
case.
Costs on appeal are divided one-half to each party.
AFFIRMED AS MODIFIED.