IN THE COURT OF APPEALS OF IOWA
No. 18-0901
Filed February 6, 2019
IN RE THE MARRIAGE OF AMBER BURINGTON
AND CHRISTOPHER BURINGTON
Upon the Petition of
AMBER BURINGTON,
Petitioner-Appellant,
And Concerning
CHRISTOPHER BURINGTON,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Richard D.
Stochl, Judge.
Amber Burington appeals the physical care and property division provisions
of the parties’ dissolution decree. AFFIRMED AS MODIFIED.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,
Decorah, for appellant.
Beth A. Becker of Tremaine & Becker Law, Sumner, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Amber Burington appeals certain provisions of the decree dissolving her
marriage to Christopher (Chris) Burington. We affirm the district court’s decision
placing the children in the parties’ joint physical care. We find the court did not
improperly value the assets awarded to Chris and no offset needs to be made for
the cash values of the parties’ life insurance policies. The property division should
be modified to set aside to Amber $20,000 from the value of her 401(k) account in
recognition of her premarital assets. In order to equalize the parties’ 401(k)
accounts, Chris should receive $11,899 from Amber’s 401(k) through a qualified
domestic relations order. We affirm the district court’s decision denying Amber’s
request to require Chris to maintain a life insurance policy naming the children as
beneficiaries. We determine each party should pay his or her own appellate
attorney fees.
I. Background Facts & Proceedings
Chris and Amber were married in 2008. They have two children, N.B., born
in 2010, and H.B., born in 2015.
The parties lived in Cedar Rapids for several years. Throughout the
marriage, Amber has worked for Transamerica Life Insurance Company as an
accountant, earning about $80,000 per year. Chris was initially employed as an
auto mechanic, but he later quit his job and started a business driving a limousine,
which he purchased contrary to Amber’s wishes. The limousine business was
never financially successful. In 2014, the parties moved to northeast Iowa, where
they both had family. Amber now works remotely, although she is required to travel
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to Cedar Rapids a few times a year for business. Chris obtained employment as
an auto mechanic for Einck’s Services, where he earns about $35,000 annually. 1
The parties separated in the spring of 2016. Soon thereafter, Chris
purchased a stock car and trailer. He stated he traded in a motorcycle he owned
prior to the marriage for the stock car. One of Chris’s hobbies is stock car racing.
He spends every Friday evening from May to August attending races. Chris was
also involved in a pool league on Wednesdays.
In June 2016, Amber made gifts to family members from bank accounts
held in her name. She gave her sister, Nichole Ackerson, $10,000 to use towards
a down payment on a house. Amber also gave her parents $13,000. She also
took all of the money out of two joint accounts—$578.08 from one account and
$9017.28 from another—which she used to pay her student loans, the debt on a
vacuum cleaner, and other expenses. Amber informed Chris she was closing the
joint bank accounts.
Amber filed a petition for dissolution of marriage on July 5, 2016. In an order
on temporary matters filed on September 7, 2016, the district court placed the
children in Amber’s physical care, granting Chris visitation on alternating weekends
and two evenings each week. Chris was ordered to pay child support of $685 per
month. The dissolution trial was held on August 30 and 31, 2017.
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Chris no longer operates the limousine business. He testified he might sell the limousine
in the future. The parties continued to pay debt associated with acquiring the limousine,
insurance premiums, and storage fees.
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In the dissolution decree,2 filed on April 11, 2018, the district court granted
the parties joint legal custody of the children and joint physical care.3 Amber was
ordered to pay $439 per month in child support. The court set aside to Chris as
premarital assets: (1) the stock car, valued at $3000, because it was obtained by
trading in a motorcycle Chris owned before the marriage; (2) Chris’s tools, except
for tools worth $5000, which the court found he acquired during the marriage; and
(3) an IRA valued at $1341. Amber’s pension from the State of Minnesota, which
accrued before she married Chris, was set aside to her. Not including the parties’
retirement funds, the court awarded Chris assets worth $16,670 and Amber assets
worth $16,164. The court found, however, Amber dissipated assets worth $23,000
by the gifts to her sister and parents, and it ordered Chris would receive one-half
of this amount—$11,500—from the sale of the parties’ home, with the remainder
of the proceeds divided equally. Additionally, the court determined Chris would
receive $21,899 from Amber’s 401(k), equalizing the amounts each party had in a
401(k) account.
Amber filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
asking the court to reconsider placing the children in the parties’ joint physical care,
rather than in her physical care. Amber also requested the court take into account
2
The district court made some factual errors in the decree. At the time of the decree,
N.B. was seven years old and H.B. was two. The hearing on temporary matters was held
on September 6, 2016. Also, the court’s finding, “On one occasion, [Amber] premised a
visit on Chris buying breast milk from her to feed the child,” is not supported by the record;
Chris testified on cross-examination he did not remember the incident and did not know if
Amber had been telling him he needed to purchase formula to feed H.B. during visits when
she was an infant.
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The court ordered the parties to submit a joint parenting plan within sixty days after the
court’s decree was filed. Until the parties reached an agreement about a parenting plan,
the parties would exchange the children at 6:00 p.m. each Sunday.
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the parties’ life insurance policies in the property division and set aside to her the
$20,000 that she brought to the marriage. Chris resisted Amber’s motion. The
court determined each party would be awarded the life insurance policies held in
his or her name. The court denied the other issues Amber raised in her rule
1.904(2) motion. Amber now appeals.
II. Standard of Review
Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re
Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). We examine the entire
record and determine anew the issues properly presented. In re Marriage of
Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the factual
findings of the district court but are not bound by them. In re Marriage of Geil, 509
N.W.2d 738, 740 (Iowa 1993).
III. Physical Care
Amber claims the district court should have granted her physical care of the
children rather than placing them in the parties’ joint physical care. She states she
was the primary caregiver for the children during the marriage. Amber believed
Chris prioritized spending time on his hobbies rather than spending time with the
children. Amber testified the parties had poor communication. She stated Chris
sometimes would not respond when she contacted him about parenting issues.
She also stated Chris did not always permit the children to talk to her on the
telephone when she called during his parenting time.
Joint physical care may be awarded if either parent requests it and it is in
the best interests of the child. Iowa Code § 598.41(5)(a) (2016). For joint physical
care, we consider several factors:
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(1) “approximation”—what has been the historical care giving
arrangement for the child[ren] between the two parties; (2) the ability
of the spouses to communicate and show mutual respect; (3) the
degree of conflict between the parents; and (4) “the degree to which
the parents are in general agreement about their approach to daily
matters.”
In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (quoting In re
Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa 2007)).
In considering the issue of physical care, our controlling consideration is the
best interests of the child. Iowa R. App. P. 6.904(3)(o); In re Marriage of Barry,
588 N.W.2d 711, 712 (Iowa Ct. App. 1998). Our objective is “to place the child in
the environment most likely to bring th[e] child to [a] healthy physical, mental, and
social maturity.” In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App.
1996).
On the issue of physical care, the district court stated:
The parties are awarded joint legal custody of their minor
children and shared physical placement. Each is capable of meeting
the physical and emotional needs of the children and have
demonstrated the ability to communicate in the best interest of both
of their daughters. The court is mindful that this change dramatically
increases the amount of time the children will spend with their father.
That is in their best interest. Based on the testimony and Amber’s
proposal to only allow Chris one overnight every-other week,
continuing the current arrangement would greatly limit the
relationship between the girls and their father. There is no reason
why Chris should not be able [to] spend equal time with his children.
We agree with the district court’s conclusion joint physical care is in the
children’s best interests because it will be beneficial for the children to spend equal
time with each parent. Although the parties have had some problems
communicating, they both showed an understanding of the need to communicate
about the children. We are hopeful the parties will continue to improve and
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respond to each other in a prompt, respectful manner, which will benefit the
children. We also hope the parents will recognize and support each other’s
relationship with the children, including permitting telephone calls from the other
parent while the child is in the parent’s care.4 We affirm the district court’s decision
placing the children in the parties’ joint physical care.
IV. Property Division
Amber claims the decree’s property division was not equitable. “Section
598.21(1) requires ‘all property, except inherited property or gifts received by one
party,’ to be equitably divided between the parties.” Fennelly, 737 N.W.2d at 102.
Factors the court considers include the length of the marriage, contributions of
each party to the marriage, the age and health of the parties, each party’s earning
capacity, property brought to the marriage, and any other factor the court may
determine to be relevant to any given case. Id. “Although an equal division is not
required, it is generally recognized that equality is often most equitable.” Id.
(citation omitted).
A. Amber claims the court did not place an adequate value on the
assets awarded to Chris. The court found Chris had tools worth $5000 that were
marital assets. Amber states the value of the tools Chris purchased during the
marriage was $14,000. Chris, who used the tools for his employment, testified he
was willing to sell his tools for $5000. Amber also claims the court did not
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Chris testified he did not always answer the telephone when Amber called to talk to the
children when they were in his care if it was not a convenient time for them to talk to her.
It might be the better practice for him to answer the telephone, inform Amber it was not a
convenient time, and suggest a better time for her to call. Additionally, the parties could
set up a scheduled time for Amber to call the children when they are in Chris’s care and
for Chris to call the children when they are in Amber’s care, thereby giving both parties
the opportunity to stay in contact with the children.
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adequately take into account a high-performance engine in a truck owned by Chris.
She does not suggest a value for the engine. The parties stipulated the truck was
worth $1500. We will not disturb the district court’s valuation of assets when they
are within the range of permissible evidence. In re Marriage of McDermott, 827
N.W.2d 671, 679 (Iowa 2013). We make no adjustment to the value of the assets
awarded to Chris.
B. Amber states the court should have taken the cash value of the
parties’ life insurance policies into consideration when dividing the property.
Amber claims she had a life insurance policy with a cash value of $1199, while
Chris had two policies, one with a value of $9047 and the other with a value of
$1877. Amber claims these amounts should be equalized, so she should be
awarded $4862.50. Chris states his policies had values of $1298 and $6492.86.
He also notes Amber had a policy with a cash value of $5545.62, which she
liquidated prior to the dissolution. The district court awarded Amber her life
insurance policy and Chris his policies. The court found Amber had cashed out
one of her policies and had not adequately accounted for the proceeds We agree
with the court’s conclusion the property division should not be modified based on
the difference in the cash values of the parties’ life insurance policies.
C. Amber claims the property division was inequitable because the
court set aside to Chris the value of his premarital assets but did not give the same
consideration to the assets she brought to the marriage. The court set aside to
Chris a stock car worth about $3000, the value of his tools beyond $5000, and an
IRA valued at $1341. The court set aside to Amber her Minnesota pension based
on employment prior to the marriage. Amber testified she brought to the marriage
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$20,000 in a bank account and household furnishings. Chris was asked, “Do you
remember [Amber] having a significant amount of cash coming into the marriage?”
and he replied, “Yes. I believe she had some saved up. How much, I don’t
remember.” He also stated she had a complete set of household furnishings when
they married.
Premarital property is not automatically awarded to the spouse who brought
it to the marriage. Fennelly, 737 N.W.2d at 102. “Property which a party brings
into the marriage is a factor to consider in making an equitable division.” In re
Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App. 1996) (citing Iowa Code
§ 598.21(1)(b)). In some circumstances, “this factor may justify a full credit, but it
is not required.” In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct. App.
1998). We note, “the claim of a party to the premarital property owned by the other
spouse in a short-term marriage is ‘minimal at best.’” In re Marriage of Hansen,
886 N.W.2d 868, 872 (Iowa Ct. App. 2016) (quoting In re Marriage of Dean, 642
N.W.2d 321, 326 (Iowa Ct. App. 2002)).
The parties were married for ten years. Under the circumstances of the
case, we determine it was equitable for the court to set aside to the parties the
property they brought to the marriage. This should include recognition of the
$20,000 Amber had at the time of the marriage. At the time of trial, Chris had a
401(k) worth $56,424 and Amber had a 401(k) worth $100,222. The court ordered
$21,899 from Amber’s 401(k) should be given to Chris in order to equalize the
accounts. We determine $20,000 from Amber’s 401(k) should be set aside to her
in recognition of her premarital property. This leaves $80,222 as marital property
in her 401(k). In order to equalize the accounts, the amount Chris should receive
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from Amber’s 401(k) through a qualified domestic relations order is reduced to
$11,899. We modify the decree to make this change.
V. Life Insurance Policy
Amber claims Chris should be required to maintain a life insurance policy
on his life, naming the children as beneficiaries. She states this would ensure the
needs of the children would be met in case Chris died. A provision in a dissolution
decree requiring a party to maintain a life insurance policy payable to the party’s
children is enforceable. In re Marriage of Mayfield, 477 N.W.2d 859, 863 (Iowa Ct.
App. 1991). Such a requirement should not be imposed, however, when it is
unnecessary. See In re Marriage of Farrell, 481 N.W.2d 528, 531 (Iowa Ct. App.
1991) (noting the children would receive social security benefits in the event of
their father’s death).
The district court ruled it would not require the parties to maintain life
insurance. We agree with the court’s conclusion, as the evidence does not show
a life insurance policy would be necessary to provide for the children if Chris died.
See id. Furthermore, Chris testified he did not have sufficient money to obtain a
new life insurance policy. We affirm the district court’s decision denying Amber’s
request to require Chris to maintain a life insurance policy naming the children as
beneficiaries.
VI. Attorney Fees
Both parties seek attorney fees for this appeal. “Appellate attorney fees are
not a matter of right, but rather rest in this court’s discretion.” In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (quoting In re Marriage of Okland, 699
N.W.2d 260, 270 (Iowa 2005)). We consider “the needs of the party seeking the
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award, the ability of the other party to pay, and the relative merits of the appeal.”
Okland, 699 N.W.2d at 270 (quoting Geil, 509 N.W.2d at 743). We determine each
party should pay his or her own appellate attorney fees.
We affirm the district court’s decision placing the children in the parties’ joint
physical care. We find the court did not improperly value the assets awarded to
Chris and no offset needs to be made for the cash values of the parties’ life
insurance policies. The property division should be modified to set aside to Amber
$20,000 from the value of her 401(k) account in recognition of her premarital
assets. In order to equalize the parties’ 401(k) accounts, Chris should receive
$11,899 from Amber’s 401(k) through a qualified domestic relations order. We
affirm the district court’s decision denying Amber’s request to require Chris to
maintain a life insurance policy naming the children as beneficiaries. We
determine each party should pay his or her own appellate attorney fees. Costs of
this appeal are assessed to Amber.
AFFIRMED AS MODIFIED.