In Re the Marriage of Sara Rose Crandall and Jonathan Christian Crandall Upon the Petition of Sara Rose Crandall, N/K/A Sara Rose Rieger, and Concerning Jonathan Christian Crandall, Jonathan Christian Crandall v. Iowa District Court for Linn County

IN THE COURT OF APPEALS OF IOWA

No. 15-1783
Filed September 14, 2016

IN RE THE MARRIAGE OF SARA ROSE CRANDALL
AND JONATHAN CHRISTIAN CRANDALL

Upon the Petition of
SARA ROSE CRANDALL, n/k/a SARA ROSE RIEGER,
Petitioner-Appellee,

And Concerning
JONATHAN CHRISTIAN CRANDALL,
Respondent-Appellant.

JONATHAN CHRISTIAN CRANDALL,
Plaintiff,

vs.

IOWA DISTRICT COURT
FOR LINN COUNTY,
Defendant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,

Judge.

Jonathan Crandall appeals the physical care and economic provisions of

the dissolution decree. On certiorari, he challenges the court’s contempt ruling.

AFFIRMED AS MODIFIED, WRIT SUSTAINED.

David D. Burbidge of Johnston, Stannard, Klesner, Burbidge & Fitzgerald,

P.L.C., Iowa City, for appellant.

Karen A. Volz of Ackley, Kopecky & Kingery, Cedar Rapids, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
 2

TABOR, Judge.

Jonathan Crandall contests the decree dissolving his eleven-year

marriage to Sara Crandall on three issues: (1) the denial of joint physical care,

(2) the visitation schedule, and (3) the distribution of assets. He also brings a

certiorari challenge to the district court’s order finding him in contempt. Sara

defends the decree and contempt order and asks for appellate attorney fees.

Because we agree with the district court’s assessment that joint physical

care would not serve the best interests of the five Crandall children, we affirm the

grant of physical care to Sara. We also conclude the extraordinary visitation

awarded by the district court assures the children continuous physical and

emotional contact with both parents.

On the economic issues, we modify in part. We order Jonathan to pay

Sara $39,144 to equalize the distribution of the parties’ property, including an

equal distribution of the assets Jonathan liquidated before trial for attorney fees

and taxes. And in an abundance of caution, we modify the court’s “no fault”

provision applicable to Jonathan’s unvested restricted stock grants to address

concerns raised by Jonathan on appeal.

As to Jonathan’s certiorari challenge to the court’s contempt ruling, we

sustain the writ. Finally, we award appellate attorney fees to Sara.

I. Facts and Prior Proceedings

Sara and Jonathan married in December 2003 and divorced in July 2015.

They have five children—ranging in age from three to ten years. The couple met

at church while students at Iowa State University. Jonathan pursued studies in

engineering, earning both bachelor’s and master’s degrees. Despite taking time
 3

off to care for their first child, Sara earned her bachelor’s degree. The couple

purchased their first home in Huxley assisted by a $10,000 gift from Sara’s

grandmother.

During their marriage, Jonathan worked full-time as an electrical engineer,

while Sara acted as the primary caretaker for the children. The couple belonged

to a church that encouraged them to pursue traditional gender roles and to

provide home-schooling for their children. Home-schooling was important to

Jonathan because that was how he received his education growing up. Sara

home-schooled the three oldest children while caring for their fourth child and

managing the family’s day-to-day finances. Jonathan engaged in many activities

with the children on weekends, including church-related functions. Shortly after

their fourth child was born in 2009, the family moved from Huxley to Marion.

After the move, Jonathan worked as an engineer for Rockwell Collins but

continued to help with the children in the evenings and on weekends. In August

2010, Jonathan transferred to Skyworks Solutions, where his hours were more

demanding. On top of his work schedule, Jonathan devoted time to repairing

and updating a rental home in Cedar Rapids the parties bought as an investment

in 2011. When their fifth child was born in March 2012, Sara found it impossible

to keep up with the home-schooling and the mounting responsibilities of the busy

household. In March 2013, she approached Jonathan about enrolling the

children in public school. Jonathan was disappointed about the decision, but he

agreed they needed the support of the public school system.

The parties separated in the summer of 2013. The separation followed

Jonathan’s Fourth-of-July arrest for operating while intoxicated and his
 4

subsequent revelations to Sara that he had not been truthful about time spent at

bars and strip clubs. Sara filed a petition for dissolution on October 15, 2013.

After she filed for divorce, Sara noticed Jonathan started to engage more in

hands-on childrearing, to the extent she perceived him trying to “beat her to the

punch” in completing certain chores. Jonathan also took the step of applying for

a “temporary writ of injunction” preventing either party from disposing of marital

assets; the district court granted the injunction on October 31, 2013.

For almost one year after Sara filed for divorce, she and Jonathan lived

under the same roof. During this time, Sara started classes at the University of

Iowa to earn her teaching certificate. By the summer of 2014, Sara found the

cohabitation “unbearable” and asked Jonathan to move out. He refused, so Sara

moved into a house purchased by her grandmother. Sara applied for temporary

orders on custody, physical care, visitation, child support, and attorney fees. On

August 8, 2014, the court issued an order on temporary matters, rejecting a fifty-

fifty shared care arrangement because Jonathan’s schedule was not flexible and

routinely required more than a forty-hour work week, while Sara’s class schedule

took her away from home less than twenty hours a week. The temporary order

did afford Jonathan time with the children that exceeded the threshold for

extraordinary visitation.

Also while the dissolution proceedings were pending, Jonathan’s parents

moved from Dubuque to Cedar Rapids, so they could be more available to help

babysit for their grandchildren. Sara was not in favor of their move and “sat

down with them to explain that this made [her] very uncomfortable.” She testified
 5

she believed Jonathan and his parents maintained a “much more conservative

and rigid value system” than she had come to follow.

Sara filed an application to show cause in February 2015, alleging

Jonathan violated the temporary injunction by selling stock and depleting marital

assets.

The district court held the dissolution trial on April 15 and 16. The parties

disputed physical care, visitation, child support, spousal support, and distribution

of assets. The court also heard testimony concerning Sara’s contempt

allegations. In the decree issued on July 22, 2015, the court granted the parties

joint legal custody and placed physical care with Sara with extraordinary

visitation for Jonathan. The court directed Jonathan to pay $1933.81 in monthly

support for the five children and $1600 in monthly spousal support for five years.

Before dividing the parties’ assets, the court set aside the $10,000 gift from

Sara’s grandmother, received in 2005, as exclusively Sara’s property. Jonathan

does not dispute the gift on appeal. The court then divided the parties’ major

assets and ordered Jonathan to make an equalization payment to Sara in the

amount of $25,771.41.

The court also found Sara proved beyond a reasonable doubt that

Jonathan failed to obey the court’s October 31, 2013 injunction by liquidating

$62,586 in stock in 2014 and another $16,946 in stock in 2015.

The parties filed motions under Iowa Rule of Civil Procedure 1.904(2),

which the district court granted in part on October 12, 2015. Jonathan then filed

a notice of appeal, as well as a petition for writ of certiorari on the court’s
 6

contempt finding. The supreme court granted his petition. This opinion will

address both Jonathan’s direct appeal and his certiorari claim.

II. Scope and Standards of Review

We review dissolution proceedings de novo. In re Marriage of Sullins, 715

N.W.2d 242, 247 (Iowa 2006). While we decide the appellate issues anew, we

give weight to the district court’s findings of fact. Id. When it comes to witness

credibility, “[t]here is good reason for us to pay very close attention to the trial

court’s assessment.” In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).

The trial judge “is greatly helped in making a wise decision about the parties by

listening to them and watching them in person.” In re Marriage of Callahan, 214

N.W.2d 133, 136 (Iowa 1974). On appeal, we must rely on the transcript and

necessarily forfeit the impressions created by the parties’ demeanors. Vrban,

359 N.W.2d at 423.

We review Jonathan’s allegations concerning the contempt finding for

errors at law. See Ary v. Iowa Dist. Ct, 735 N.W.2d 621, 624 (Iowa 2007). We

find error if the district court’s factual findings are not supported by substantial

evidence or if the court has not properly applied the law. Id.

III. Analysis of Jonathan’s Appeal Issues

A. Joint Physical Care

The first question in Jonathan’s appeal is whether the district court should

have honored his request for joint physical care of their five children. Physical

care is a distinct concept from legal custody. Legal custody requires parents to

make significant decisions about their children’s legal status, medical care,

education, extracurricular activities, and religious instruction. Iowa Code
 7

§ 598.1(3), (5) (2015); see also In re Marriage of Hansen, 733 N.W.2d 683, 690

(Iowa 2007). Physical care involves the parents’ obligation and opportunity to

maintain a home and provide routine care for their children. Iowa Code

§ 598.1(7); Hansen, 733 N.W.2d at 690–91 (explaining physical-care parent

must navigate “the myriad of details” associated with everyday childrearing,

including what clothes the children wear, when they go to bed, and with whom

they associate).

An award of joint physical care requires divorced parents to work closely

together to coordinate the myriad of everyday details. That is why when deciding

if joint physical care is in the children’s best interests, we must consider the

continuity of caregiving, the ability of the divorced parents to communicate and

show mutual respect, the degree of conflict between them, and the degree to

which they are in general agreement about their approach to daily parenting

matters.1 See Hansen, 733 N.W.2d at 696–99.

Sara and Jonathan agreed to joint legal custody and the district court

determined that designation was in the best interests of the children. The point

of disagreement was Jonathan’s request for joint physical care (often referred to

as shared care). When the court denies a parent’s request for joint physical

care, its denial must be accompanied by specific findings of fact and conclusions

of law explaining why shared care is not in the children’s best interests. Iowa

Code § 598.41(5)(a).

1
In deciding appropriate physical care, we also consider the factors listed in Iowa Code
section 598.41(3).
 8

The district court provided that glimpse into its thought process, calling the

question of joint physical care “both difficult and close.” In the court’s opinion,

“[b]oth parents love the children very much and both parents adequately provide

for the physical care needs of the children.” The court had “no concerns about

the physical well-being of the children while they are in the custody of either

parent.” But the court ultimately decided the Hansen factors tipped the scales

away from a shared-care arrangement, pointing to the parties’ difficulty in

successfully communicating and their differing philosophies “as to the role of

each spouse in a marriage and in the raising and caring for children.” The court

also concluded, “Sara’s perception that Jonathan does not respect her as an

equal is not unwarranted.” After denying Jonathan’s request for shared care, the

court awarded physical care to Sara, continuing the extraordinary visitation

afforded Jonathan since the temporary order.

On appeal, Jonathan renews his request for joint physical care. He does

not alternatively ask for physical care to be placed with him. Jonathan contends

he and Sara have effectively communicated about their children since the

separation, their parenting philosophies are not that different, and isolated

incidents of his disrespect toward Sara are not indicative of their ongoing

relationship.

Although the record confirms both Sara and Jonathan are loving and

capable parents, we agree with the district court’s insightful conclusions and

ultimate decision that joint physical care is not in the best interests of their five

children. The children will experience greater stability and continuity in the

physical care of Sara with liberal visitation for Jonathan; this arrangement most
 9

closely approximates the proportion of time spent with each parent before the

separation. See Hansen, 733 N.W.2d at 683 (focusing on historical patterns of

caregiving as one factor in joint-physical-care decision). We acknowledge

Jonathan’s point that both he and Sara have made concerted efforts at

communicating for the sake of their children, especially regarding academic and

extracurricular activities. But we are concerned Jonathan has not consistently

accorded Sara the same level of respect she has shown him. See id. at 698

(“Evidence of controlling behavior by a spouse may be an indicator of potential

problems.”). Specifically, we find it telling that after the parties separated,

Jonathan changed the password on their financial accounts, implemented a

process where he would designate and deposit “a lump sum into the checking

account for groceries and gas and things for the kids,” and had members of their

church “go through [her] bank accounts to see how she was spending every

dime.”

We also credit Sara’s testimony that they did not agree about their

approach to daily parenting matters. She testified: “[W]e have different values

about discipline. I have had time with the kids to sort of develop the skills of

dealing with five small children . . . . [H]e tends to be permissive until he blows

up.” See id. at 699 (noting “parents must generally be operating from the same

page on a wide variety of routine matters”). Considering all the pertinent factors,

we reach the same decision as the district court concerning joint physical care.

B. Visitation

Given our decision to affirm the district court’s denial of joint physical care,

Jonathan asks for additional visitation comparable to his proposal for the children
 10

to alternate between three- and four-day stretches with each parent. Sara urges

us not to disturb the visitation in the decree. She notes the schedule proposed

by Jonathan relies heavily on his parents to take care of the children at times

when Sara is available to care for them.

Continuing the extraordinary visitation provided to Jonathan in the

temporary order, the decree provides:

Jonathan shall have physical care of the children every other
weekend from Thursday after school (or 3:30 p.m.) until the
following Monday morning at the start of school (or 8:30 a.m.); and,
during the alternate week, every Wednesday from after school (or
3:30 p.m.) until the following morning at the start of school (or 8:30
a.m.).

The decree’s alternating midweek and weekend visitation schedule, in addition to

alternating holidays and spring breaks, is in the children’s best interests and

provides them meaningful and sustained time in their father’s care. See In re

Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct. App. 2000) (noting chapter

598’s supposition that it is generally in children’s best interests to have the

opportunity for maximum continuous physical and emotional contact with both

parents can be satisfied by liberal visitation in various forms). All the witnesses

at the dissolution hearing testified the children are doing well under the existing

schedule. We affirm the district court’s visitation schedule.

C. Property Division

Jonathan also challenges the economic provisions of the dissolution

decree. He claims the court erred in valuing and distributing vested and

unvested assets associated with his employment at Skyworks. Concerning his

equalization payment to Sara, Jonathan contends the court should have ordered
 11

the sale of his property and allowed him to deduct taxes and costs. He also

faults the court for granting Sara access to his financial information.

1. Property and Jonathan’s Vested Stock

The district court must divide marital property “equitably between the

parties,” in consideration of the thirteen factors listed in Iowa Code section

598.21(5). The division does not need to be equal or follow a certain percentage;

rather, the court should make a just award under the circumstances. In re

Marriage of Hoak, 364 N.W.2d 185, 194 (Iowa 1985).

Most of the information regarding assets and liabilities came from

Jonathan. The valuation and distribution of the parties’ real estate2 and cars is

not disputed. The court awarded Sara her Roth IRA.3 At trial, Jonathan

proposed the court value his vested stock assets (stock options, restricted stock

grants, ESPP stock) at market value at the time of trial, divide the value of his

stock assets equally as shown in his Exhibit BBB, and order him to pay $31,877

to Sara to equalize the property distribution.

The court adopted Jonathan’s valuations and also adopted his proposal to

equally split his vested stock assets4 based on the market value Jonathan

2
Jonathan’s father holds the $44,000 mortgage on the rental property.
3
Jonathan proposed splitting equally his IRA ($50,155.94) and 401K ($107,894.86).
The court agreed, ordered those assets divided by QDRO, and neither party appeals
that resolution. See In re Marriage of Veit, 797 N.W.2d 562, 564 (Iowa 2011) (“[T]he
QDRO is not itself a property settlement, but is merely a method of effectuating the
property division.”).
4
Jonathan testified his Employee Stock Purchase Plan (ESPP) account held shares of
Skyworks stock that he owned and he could immediately sell these shares. As to
Jonathan’s separate account holding restricted stock, he explained:
The company issues stock awards based on company
performance, as well as personal performance in my job, and it’s an
award that tries to motivate [me] to keep doing a good job and stay at the
company because it vests between a three- and four-year period. So
 12

provided. When we exclude Jonathan’s stock options, which the court awarded

separately in its later ruling on Jonathan’s rule 1.904(2) motion, the following

table shows the valuation and division of the these assets:

Asset Sara Jonathan
Homestead 223,000
Homestead Debt -153,300
Rental 47,000
Rental Debt -44,000
2006 Odyssey 8741
2000 CRV 1710
Sara Roth 24,326
J’s Restricted Stock 65,289 65,289
J’s ESPP 9410 9410
Net Assets 107,766 149,109

Equalization 20,671 -20,671
Property Division 128,437 128,438

The court also set aside the $10,000 gift Sara had received from her

grandmother and ordered Jonathan to pay Sara the $10,000 as a part of the

equalization payment. Therefore, when we add the $10,000 gift to the above

valuation and distribution, we conclude Jonathan should pay Sara $30,671,5 an

amount lower than the $31,877 he proposed paying at trial.

On appeal, Jonathan first claims the court inequitably distributed his

vested stock assets (restricted stock and ESPP stock). Without citation to

authority, he argues the distribution “must explicitly state that the parties are not

each stock grant . . . is a grant of a certain number of [Skyworks] shares,
and [then] a certain number of shares are released as a percentage of the
total each year. And so as the shares vest, they get credited to my
account, and I have the freedom to sell them immediately for income or
hold them as an asset and sell them much later for capital gains.
5
The court ordered Jonathan to pay Sara $25,771.41, which total included the $10,000
gift. The court did not explain its calculation. We conclude the appropriate equalization
payment for these accounts plus the gift is $30,671. In our discussion of the contempt
action below, we increase the overall equalization payment to $39,144, based on
Jonathan’s liquidation of assets in 2015.
 13

awarded a specific dollar amount but are awarded one-half of the stocks existing

at the time of trial regardless of whether their value has increased or decreased

from the values at the time of trial.” In making this argument on appeal, Jonathan

abandons the dollar values assigned to the stock in his own property distribution

proposal and also abandons his proposal that the value of the those assets be

split equally to determine an appropriate equalization payment.

We recognize “the general rule that stock should be valued at market

value if it can be ascertained.” Id. at 192. When the district court’s valuation is

within the permissible range of evidence, we will accept it. Id. at 192–93. Upon

our de novo review, we accept the district court’s valuations based on Jonathan’s

evidence. See In re Marriage of Moffatt, 279 N.W.2d 15, 19 (Iowa 1979) (“We

need not arrive at an exact value. The purpose of determining value is to assist

the court in making equitable property awards and allowances.”). We modify the

decree to order Jonathan to pay Sara $30,671 to equalize the asset distribution.

See Hoak, 364 N.W.2d at 194 (declining request to transfer stock shares as a

part of the distribution of property).

Second, Jonathan argues the district court failed to properly account for

the tax implications of his equalization payment because the court did not order

him to sell an asset. Jonathan asserts the only assets available to him for this

payment are his vested stock grants or vested stock options. He asks us to

modify the decree to order the sale of stock options in the amount of the

equalization payment. He proposes to then pay Sara “the net amount after

taxes.” Sara responds Jonathan is not limited to those assets and can make this

payment by refinancing the home mortgage.
 14

In making a property division we consider the tax consequences a party is

expected to face in satisfying a property settlement. See Iowa Code

§ 598.21(5)(j). Our supreme court has instructed: “‘[W]here there is no evidence

to support a discounting based on a sale and the trial court has not ordered a

sale, the effect of considering income tax consequences on a sale’ diminishes

the value of the asset to the nonowning spouse.” In re Marriage of McDermott,

827 N.W.2d 671, 684 (Iowa 2013) (quoting In re Marriage of Friedman, 466

N.W.2d 689, 691 (Iowa 1991)) (stating if a dissolution court orders a sale of an

asset, it may then consider the tax consequences in its property distribution);

Friedman, 466 N.W.2d at 691 (stating tax consequences are not considered

when there is no evidence “a sale was pending” and the district court “has not

ordered a sale”); In re Marriage of Hogeland, 448 N.W.2d 678, 680–81 (Iowa Ct.

App. 1989) (stating where equalization payment will require the liquidation of

capital assets, the income tax consequences of the sale should be considered).

The district court presumably believed Jonathan had sufficient cash flow to

make the mortgage payments and satisfy the equalization payment. Jonathan

has not shown he is unable to refinance the mortgage ($67,000 equity) and make

the equalization payment. Jonathan also could use a portion of his salary and

incentives (as of March 3, 2015—$100,656 base salary; 2014—$97,639 base

salary plus $71,000 performance bonus). Further, Jonathan included in his

monthly expenses the children’s taekwondo lessons, new hefty allowances for

the children, and their piano lessons. We also note his 2014 purchase of new

Samsung Galaxy tablets for the children. On cross-examination, Jonathan

admitted those costs “are not necessary monthly expenses.” By spending this
 15

money and including these costs as necessary monthly expenses, Jonathan

artificially lowered his cash flow. Because Jonathan has not shown he is unable

to refinance the mortgage, the evidence does not support Jonathan’s assertion

he would be forced to exercise and liquidate vested stock assets to pay Sara,

and we decline Jonathan’s request.

2. Jonathan’s Stock Options.

Jonathan’s vested stock options, granted when he started work in August

2010, allow him to buy 2500 shares of company stock at the strike price ($17.13).

At trial, Jonathan explained exercising the options would be a taxable event

because he owned the options, not the shares of stock. Jonathan asked the

court to order him to exercise all the options, obtain the net value, and split the

net value with Sara.

While the decree assigned Jonathan’s proposed value as his profit in the

stock options ($198,450) and divided that value equally between the parties, the

court failed to further specify distribution of this asset. In Jonathan’s rule

1.904(2) motion, he asked the court to modify the decree,6 asserting his vested

stock options “are not a retirement account and cannot be split by a QDRO.

They can only be distributed to [Sara] by [Jonathan] exercising them, and then

paying income taxes on the amount received.” Jonathan asked the court to

award each party 1250 stock options. According to Jonathan, the court should

further order him “to exercise [Sara’s] 1250 shares, have an accountant

determine the amount of income taxes [Jonathan] shall pay on this amount, and

6
Jonathan’s 1.904(2) motion did not address his two other vested assets—the vested
restricted stock ($130,578) and the ESPP ($18,819).
 16

pay [Sara] this net amount.” Finally, Jonathan asked the court to order him “to

provide to [Sara] all needed access to the relevant records of the plan

administrator, the account, and the accountant.”

The court’s October 12, 2015 order granted Jonathan’s motion in part,

noting its intent for the parties to share equally “any transaction costs, including

tax liability, incurred by exercising these options.” The court ordered Jonathan to

accomplish “an equal division in one of two ways: First, if possible, [Jonathan]

shall transfer one-half of the actual vested units to Sara.” Second, if not possible,

Jonathan “shall complete all paperwork necessary to allow [Sara] access to all

information regarding the vested stock option account(s).” Under the second

option, the court gave Sara sixty days to obtain information and advice and to

“elect to either (A) require [Jonathan] to exercise the option on one-half of the

units and give [her] the net proceeds” or “(B) continue to hold all the vested stock

options jointly and be entitled to one-half of the net proceeds of each option unit

as it is exercised.” The court specified, if Sara picked option (B), then she had

“the continued right to complete access to the account information.”

On appeal, Jonathan asks us to modify the district court’s orders regarding

Sara’s access to his financial information to state: “Jonathan will provide Sara

with all quarterly statements of the vested stock options, vested stock grants, and

unvested stock grants that existed at the time of the decree. He shall be

permitted to redact from such statements, any and all financial information

regarding post-decree financial information.”

We decline his request. The district court’s rulings make it clear Sara only

has access to information concerning Jonathan’s financial assets at the time of
 17

dissolution. No modification is needed for Jonathan to redact information

regarding his later-acquired assets.

3. Jonathan’s Unvested Restricted Stock Grants.

Jonathan’s restricted stock vests on a deferred timetable set at the time

his employer granted the shares to him. The final vesting will occur on

November 10, 2018, four years after the November 2014 grant of shares.

Regarding both Jonathan’s vested restricted stock grants (included in the

equalization analysis above) and his unvested restricted stock grants, his exhibit

provided:

Grant Shares Traded
Date Status Granted Sellable Unvested Vested for Taxes
09/06/2011 N/A 1000 479 0 1000 383
11/10/2011 Accepted 1000 479 250 750 217
11/08/2012 Accepted 1250 395 624 626 231
11/10/2014 Accepted 1000 0 1000 0 0

Thus, the restricted stock at issue was granted to Jonathan by his

employer during the marriage, but some shares, though already granted, were

unvested at the time of the dissolution. In general, “[v]esting provisions vary

considerably” as to “the point in time at which vesting will occur (immediately vs.

deferred).” In re Marriage of Benson, 545 N.W.2d 252, 254 (Iowa 1996). At trial,

Jonathan testified to his willingness to divide the unvested restricted shares

equitably with Sara if a means to do so existed:

Q. If you could give them to Sara, would you give them to
Sara? A. I would divide them with Sara equitably.
Q. If they’re worth nothing, would you give them to Sara? A.
. . . . You’re saying if there was a legal means to divide an asset
like . . . an unvested stock grant? I would divide them with Sara, as
I’ve proposed dividing every asset in this case, 50/50.
 18

The district court adopted Jonathan’s valuation of the unvested restricted

shares ($180,859.74) and devised a plan to equitably divide this asset:

Jonathan is ordered to identify the individual number of
shares in unvested stock grants he holds as of the date of this
decree. Hereafter, each year when a number of these grants vest,
Jonathan shall transfer half the value to Sara. This pattern will
continue until all identified stock grants vest, or until the grants no
longer exist through no fault of Jonathan. Jonathan is ordered to
keep Sara informed of the status of these stock grants and to
provide her copies of all documentation he is provided by his
employer regarding these grants.[7]

Thus, the district court granted Sara an equal portion of the unvested restricted

stock only if the shares granted during the marriage actually vested in the future.

(a) Marital Estate. On appeal, Jonathan first claims this asset is not a

part of the marital estate, pointing out he could not cash out the unvested

restricted shares at the time of trial and will only obtain these stock shares “if he

continues to work there at the preset vesting date.”

We divide the property the parties own at the time of the dissolution, and

his employer granted him these restricted shares during his pre-dissolution

employment. Thus, the facts of the existing grants, their value at the time of trial

(from Jonathan’s exhibit), and their potential for vesting in the future are

undisputed. Jonathan has not cited any authority for his claim we must reverse

the district court and rule this asset is not a part of the marital estate. See Iowa

R. App. P. 6.903(2)(g)(3) (“Failure to cite an authority in support of an issue may

7
Based on the $180,859.74 value and on describing the asset as unvested, it is clear
the court is discussing the unvested stock grants in this paragraph. But the court
inadvertently used the phrase “unvested stock options.” As Jonathan testified, all of his
2010 stock options have now vested. We have corrected the court’s inadvertent
phrasing without notation.
 19

be deemed waiver of that issue.”). Thus, he has failed to show us why the

district court’s inclusion of this property was wrong.

The following treatise contravenes Jonathan’s position:

To the extent the employee does not receive an unvested
benefit if the employee leaves the employer after the divorce, the
remedy is not to refuse to divide the benefit, but rather to divide it
on a deferred percentage basis, so that the nonowning spouse
receives a stated percentage of any value which does ultimately
vest. If a . . . contract right acquired during the marriage does not
ultimately produce value, no value should be divided; but the fact
that such a contract right might not produce value is no basis for
concluding in advance that the contract right will not produce value.
The uncertainties . . . should affect only the method of distribution;
they should not be sufficient to prevent the court from considering
the [contract right] as potentially divisible property.

2 Brett R. Turner, Equitable Distribution of Property § 6:48 (3d ed. 2015). Courts

from other jurisdictions have treated similar unvested benefits as marital

property. See, e.g., In re Marriage of Miller, 915 P.2d 1314, 1319–20 (Colo.

1996) (en banc) (stating because husband had already earned the right to

receive the restricted shares in the future, the shares are “a form of deferred

compensation and thus constitute marital property”); Chebhab v. Hamilton-

Chehab, 45 So. 3d 533, 535 (Fla. Dist. Ct. App. 2010) (noting wife’s shares of

restricted stock granted during the marriage vest and expire at different times,

including post-decree, and unvested shares are “in the nature of deferred

compensation” and “a marital asset”). But see Davidson v. Davidson, 578

N.W.2d 848, 853–56 (Neb. 1998) (“Stock retention shares are stock shares that

are unvested when granted” and unvested shares vesting only upon continued

employment “are not a part of the marital estate”).
 20

Iowa case law also has recognized future interests may be included in the

marital estate. See In re Marriage of Schriner, 695 N.W.2d 493, 498–99 (Iowa

2005) (stating, similar to pensions, “a future interest is properly considered as a

marital asset subject to distribution”); In re Marriage of White, 537 N.W.2d 744,

747 (Iowa 1995) (stating a court may divide future book royalties conditioned on

author-spouse’s performance of post-decree promotional services by a decree

that “divides the funds when received”); In re Marriage of Howell, 434 N.W.2d

629, 632 (Iowa 1989) (stating Iowa law normally views pensions as property

because they are a form of deferred compensation accrued during the marriage);

In re Marriage of Duggan, No. 01-1887, 2002 WL 31423683, at *2 (Iowa Ct. App.

Oct. 30, 2002) (including husband’s deferred compensation in the marital estate).

Jonathan acquired a right to the restricted shares during the marriage, and

he has not convinced us the district court erred in considering these shares a

part of the marital estate.

(b) “No fault” provision. Noting the last stock grant will vest on

November 10, 2018, Jonathan also challenges the court’s “no fault” language in

its distribution of this asset. He points out the provision seems to account for

unvested restricted stock grants that do not eventually vest on the preset

timetable due to (1) his employer revoking the grant, (2) Jonathan being laid off

due to company issues, or (3) “Jonathan being unable to work for some no-fault

reason.” We agree the court’s language encompasses these situations. But,

Jonathan also claims the court has made him an “indentured servant to his

current employer” until November 10, 2018. He asks us to eliminate the court’s
 21

“fault” provision and instead order him to pay Sara only if “they actually do vest

regardless of the reason.”

We do not believe the court’s “no fault” language precludes Jonathan from

switching employers if he has the opportunity to improve his employment

situation before the November 2018 vesting date. Similarly, if Sara moves away

and then Jonathan follows and moves to be near his children, Jonathan obtaining

new employment in those circumstances would not trigger the court’s “no fault”

language. We decline Jonathan’s request to completely strike the court’s “fault”

provision. But to the extent the court’s “no fault” phrasing is unclear, in an

abundance of caution we modify the decree by expanding the provision to

specify it encompasses (1) Jonathan’s employer revoking these grants,

(2) Jonathan being laid off due to company issues, (3) “Jonathan being unable to

work for some no-fault reason,” (4) Jonathan moving to be near his children if

Sara moves away, causing Jonathan to seek and obtain new employment, and

(5) Jonathan switching employers because he has the opportunity to improve his

employment situation before the final November 2018 vesting date.

IV. Analysis of Certiorari Challenge to Contempt Order

Jonathan alleges the district court acted illegally or exceeded its

jurisdiction in finding him in contempt for liquidating $62,586 in stock in 2014,

given the fact that at trial Sara limited her contempt claim to $16,946 in stock

withdrawals in 2015. Jonathan also contests the finding that he willfully defied a

court order in making the 2015 withdrawals. We agree with Jonathan and

sustain the writ.
 22

Shortly after Sara filed for dissolution, Jonathan sought and received a

temporary injunction prohibiting the sale of assets. The court order prohibited the

parties from:

Selling, spending, disposing of, encumbering, destroying,
damaging, transferring to third parties, or converting any asset . . .
except each party may make expenditures needed for regular and
ordinary living expenses, reasonable legal fees, and expenses for
this case. Each party may make expenditures for ordinary
expenses in the normal course of the parties’ business.

Sara filed a rule to show cause when Jonathan’s 2014 documents showed

the receipt of over $60,0000 above his salary, believing he had cashed out stock

holdings in violation of the injunction. At trial Jonathan testified $62,586 in

shares vested in 2014, resulting in a tax obligation, but he did not request or

receive a $62,586 cash payout. He also admitted making two smaller

liquidations in January and March 2015. After Jonathan provided additional

information, Sara agreed he did not cash out more than $60,000 in 2014, and

during the trial she amended her contempt allegations to Jonathan’s liquidation

and withdrawal of $2898 in January 2015 and $14,048 in March 2015, or

$16,946.

In his certiorari challenge, Jonathan asserts he used the 2015 withdrawals

to pay his attorney fees for the dissolution action and the 2014 income taxes he

owed. He contends these expenditures were allowed by the injunction. Sara

argues Jonathan did not present evidence he was unable to pay his living

expenses and attorney fees without selling the stock and did not apply for court

permission to liquidate these assets for these purposes.
 23

Based on the language of the injunction “excepting” reasonable legal fees

and ordinary living expenses, such as paying one’s income taxes, we conclude

Jonathan’s liquidation did not constitute a willful violation of the injunction.

Accordingly, we sustain the writ. But that determination does not fully conclude

the matter. Sara also owed attorney fees and had ordinary household expenses

during this time, and Jonathan did not include his liquidated assets in his

valuations and did not split these assets equally upon liquidation. Therefore, we

conclude Jonathan must pay Sara $8473 (one-half of $16,946) in his equalization

payment. Thus, Jonathan’s equalization payment to Sara now totals $39,144

($30,671 + $8473).

V. Appellate Attorney Fees

Sara asks for appellate attorney fees in the amount of $6810. Such an

award rests in our discretion and is based on the merits of the appeal, the

parties’ needs, and their ability to pay. See Sullins, 715 N.W.2d at 258. After

considering all appropriate factors, we order Jonathan to pay $5000 of Sara’s

appellate attorney fees. Jonathan is assessed the costs of this appeal.

AFFIRMED AS MODIFIED, WRIT SUSTAINED.