In re the Marriage of Curtis

IN THE COURT OF APPEALS OF IOWA

No. 18-1535
Filed August 7, 2019

IN RE THE MARRIAGE OF MISHA LEA CURTIS
AND MARK WADE CURTIS

Upon the Petition of
MISHA LEA CURTIS,
Petitioner-Appellee,

And Concerning
MARK WADE CURTIS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Adams County, John D. Lloyd,

Judge.

Mark Curtis appeals a decree of dissolution of marriage. AFFIRMED AS

MODIFIED AND REMANDED.

Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar

Rapids, for appellant.

Rodney K. Maharry, Clive, and Jami J. Hagemeier of Williams & Hagemeier,

P.L.C., Des Moines, for appellee.

Considered by Doyle, P.J., Mullins, J., and Vogel, S.J.*.

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
 2

MULLINS, Judge.

Mark Curtis appeals the decree dissolving his marriage to Misha Curtis.

Mark challenges the spousal-support, child-support, property-distribution, and

visitation provisions of the decree, as well as the court’s award of trial attorney fees

in favor of Misha. Misha requests an award of appellate attorney fees.

I. Background Facts and Proceedings

Affording deference to the district court’s factual findings and credibility

determinations in our de novo review of this equitable proceeding, we make the

following factual findings. The parties met in 2004 and married in 2005. The

marriage produced two children, I.C. and A.C., respectively born in 2006 and 2008.

Misha has another child from a prior marriage, E.A., born in 2001, who resided

with the parties during the marriage.

Mark has an associate’s degree in information technology. Misha has

college degrees in animal science and nursing. Both are in good health. Mark

started his own heating-and-cooling business in 2005; the parties are equal owners

of the business. The parties jointly purchased a hardware store in 2012. Prior to

purchasing the hardware store, Misha worked as a nurse. The parties mutually

agreed Misha would cut back on her hours working as a nurse and devote more

of her time to the hardware store. In 2013, a bakery was established in a building

attached to the hardware store, which is also jointly owned by the parties. 1 The

parties are also the joint owners of a limited liability company (LLC) which owns

the buildings in which the heating-and-cooling, hardware-store, and bakery

1
The income generated by the bakery runs through the hardware store.
 3

businesses are housed. The parties also purchased two rental properties on

contract.

When the parties purchased the hardware store in 2012, they ran it

together. In 2013, an employee of the heating-and-cooling business quit, and Mark

focused his efforts on that business, which resulted in Misha running the hardware

store. Misha had also run the bakery since its inception in 2013. This dynamic

continued until around October 2016, when the parties agreed Mark would

discontinue the heating-and-cooling business. At this point, Mark decided he

wanted to pursue employment as an electrician. Mark was unable to find a local

job, but he found an electrician job in Minnesota, which included a substantial

increase in pay. Mark maintained this employment until July 2017. During this

period, Mark lived in Minnesota and only visited the family on weekends. He then

moved back to Iowa and began working as an electrician for another employer.

Mark was terminated from this position in October. Mark then began receiving

unemployment. While receiving unemployment, Mark began rebuilding the

heating-and-cooling business.

At the time of trial, Misha was pursuing her master’s degree in nursing

education and was twenty credits away from obtaining the same. Misha continues

to work as a nurse at Greater Regional Medical Center, but only on an as-needed

basis, which is usually about once every six weeks. She earns $29.00 per hour

and brings in between $4000 and $5000 per year from nursing. Her primary

employment is at the hardware store and bakery. She makes about $1050 per

month from those businesses. Misha is also a nursing educator. She teaches

eight hours per week from January through May and earns $29.50 per hour, which
 4

amounts to annual income of $4720. Finally, Misha earns in the neighborhood of

$3900 per year working at a summer camp. Misha conceded in her testimony she

could earn significantly more money as a nurse if she did not have to manage the

businesses.

Mark moved out of the marital home in September 2017. Shortly thereafter,

Misha petitioned for dissolution of the parties’ marriage. In December, Misha

moved for a temporary-matters hearing concerning temporary custody and

financial matters. The parties submitted child-support-guidelines worksheets and

affidavits of financial status. Misha sought physical care while Mark sought shared

care. Misha identified her gross annual income as $26,0002 and imputed income

to Mark in the amount of $70,000. Mark identified Misha’s gross annual income

as $32,000 and his as $35,516.3

In February 2018, the court entered a temporary order granting the parties

joint legal custody and awarding physical care to Misha, subject to visitation for

Mark every other weekend and every Tuesday and Thursday evening from 4:00 to

8:00 p.m.4 The court ordered Mark to pay temporary child support in the amount

of $744.55.5

2
Misha’s affidavit of financial status noted her sources of income were the hardware store,
from which she received $16,000 per year, and a hospital and community college from
which she collectively received $10,000 per year.
3
In his affidavit of financial status, Mark indicated his only source of income to be
“unemployment,” from which he received $2959.66 per month.
4
The temporary-matters order provided Mark’s weekend visitation would be from 9:00
a.m. on Saturday until 8:00 p.m. on Sunday through the end of March. Thereafter, Mark’s
weekend visitation would be from Friday after school, or 6:00 p.m. on non-school days,
until 6:00 p.m. on Sunday.
5
The record does not include the figures used by the district court in determining
temporary support.
 5

Trial was held over four days in May and June. The court entered its

findings of fact, conclusions of law, and order in August. The court’s distribution

of assets and liabilities6 amounted to net assets in the amount of $333,920 for

Mark—which included all the business assets and rental properties—and $7563

for Misha. The court ordered Mark to pay Misha an equalization payment in the

amount of $150,000, shifting the net assets for Mark to $183,920 and for Misha to

$157,563. As part of its property distribution, the court additionally ordered Mark

to pay for $20,000 of Misha’s attorney fees, further reducing his net assets from

the property distribution to $163,920.

Because the “property division . . . effectively removed [Misha] from the

work force” and she was in the process of obtaining her master’s degree which

would give her a source of income from teaching, the court awarded Misha

rehabilitative spousal support for three years. The court ordered Mark’s monthly

spousal-support obligation to be $3000 for the first year, $2000 for the second

year, and $1000 for the third year.

The court awarded Misha physical care of the children and provided Mark

with visitation every other weekend from Friday afternoon through Sunday

evening, three-and-one-half hours one weeknight per week, alternating holidays,

and two weeks in the summer. As to child support, the parties agreed in their

amended child-support-guidelines worksheets that Mark’s gross annual income

amounted to $70,000.7 In calculating child support, the court adopted this figure

6
The court subsequently amended its property distribution to correct the valuation of a
horse. The figures provided are derived from the property distribution as amended.
7
However, in his post-trial statement of requested relief, Mark asserted his annual income
to be $40,000.
 6

and added an additional $10,000 in estimated income for the hardware store

business to reach a gross annual income for Mark of $80,000. Aside from her

income from spousal support, the court determined Misha’s gross annual income

to be $5000. Based upon these figures, and considering the reduction in Mark’s

spousal-support obligation after one year, the court determined Mark’s child

support obligation to be $621.24 as of August 2018 and $850.29 as of October

2019. In light of the “many moving parts” and the fact that Misha’s income will

undoubtedly increase, the court directed the parties, beginning in 2020, to

exchange financial information.

The court also revisited Mark’s child-support obligation under the temporary

order. The court stated:

It appears without doubt that [Mark] failed to disclose his
unemployment income on his financial information provided to the
court for the temporary matters hearing. Inclusion of that income
with the income he was generating from his heating and cooling
business would have produced a significantly higher child support
award.

In light of the court’s determination, it recalculated Mark’s child-support obligation

as to the six months the temporary-matters order was in place, and entered

judgment against Mark and in favor of Misha in the amount of $2051.76, the

difference between what Mark was ordered to pay under the temporary-matters

order and what the court determined he should have been paying.

The court directed Misha’s counsel to prepare a decree incorporating its

findings and submit it to Mark’s counsel for approval, after which it would be

presented to the court. The court ultimately entered its decree, incorporating the

foregoing. The decree was subsequently amended as to matters generally
 7

irrelevant to this appeal in response to the parties’ post-trial motions to enlarge or

amend pursuant to Iowa Rule of Civil Procedure 1.904(2). As noted, Mark appeals.

II. Standard of Review

Appellate review of dissolution cases is de novo. Iowa R. App. 6.907; In re

Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). While we give weight to

the factual findings of the district court, especially when considering the credibility

of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g); In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Because the court bases

its decision on the unique facts of each case, precedent is of little value. In re

Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009).

III. Analysis

A. Income of the Parties

First, Mark argues the annual incomes used by the district court in awarding

spousal support and calculating child support—$80,000 for Mark and $5000 for

Misha—are unsupported by the evidence. As to Mark’s income, Mark only

complains of the district court assigning him income of $10,000 attributable to his

receipt of the business assets in the property distribution. The court must

determine income for child-support purposes “from the most reliable evidence

presented.” In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). Being

the recipient of the business assets, the court estimated Mark’s income would

increase by $10,000. As noted, Misha was receiving $12,600 in annual income

from the hardware store and bakery at the time of trial. Additionally, Mark received

the parties’ two rental properties, which, given Mark’s clear financial motivations,

will undoubtedly result in additional income. An assignment of additional income
 8

to Mark in the amount of $10,000 is well within the range of evidence—and actually

fell on the lower end of the permissible range—and, consequently, we will not

disturb it. Cf. In re Marriage of Keener, 728 N.W.2d 188, 194 (Iowa 2007) (“A trial

court’s valuation will not be disturbed when it is within the range of evidence.”).

Mark complains the district court supported Misha’s plans to complete her

master’s degree rather than requiring her to work full time. Although the marriage

is dissolved, we agree with the district court that the progress made toward the

master’s degree during the marriage has a value to the parties that should not be

abandoned. The completion of the degree has the potential to reap benefits to

Misha, even to Mark, and certainly to the children. Mark’s argument to abandon

the master’s degree is short-sighted, at best.

On our de novo review, however, we find the evidence supports a different

calculation of Misha’s income during the remaining educational period than that

determined by the district court. Although somewhat unclear, the record seems to

indicate, and the district court appears to have assumed, that Misha would not be

returning to full-time employment but would instead be focusing on obtaining her

master’s degree before returning to full-time employment as a post-secondary

educator. With this in mind, the court assigned Misha annual income in the amount

of $5000, attributable to nursing on a part-time basis. The court did not include the

income Misha has historically earned as a part-time teacher and from working at

a summer camp, presumably while she had been taking classes and progressing

on the master’s degree. Upon our consideration of the historical evidence

presented, we determine Misha’s actual annual income for the purpose of child
 9

support would be not less than $13,120.8 We note Misha’s progress on her

master’s degree was made while working full time at the hardware store and

bakery, in addition to the three part-time jobs just referenced. We are convinced

that she could, and likely would, work additional nursing hours and therefore

impute to her an additional $8000 in annual income, for a total income of $21,120,

while she finishes her master’s degree.

B. Spousal Support

Mark challenges the district court’s award of spousal support to Misha as

inequitable. The court fashioned its award of spousal support as rehabilitative in

nature. Mark takes the position that Misha is readily capable of self-support and

has no need for spousal support. “A trial court has considerable latitude when

making an award of spousal support.” In re Marriage of Schenkelberg, 824 N.W.2d

481, 486 (Iowa 2012). We will only disturb the award if it fails to do equity between

the parties. Id.

The district court may grant an award of spousal support in a dissolution

proceeding for a limited or indefinite length of time after considering all of the

following factors:

(a) The length of the marriage.
(b) The age and physical and emotional health of the parties.
(c) The distribution of property made pursuant to section
598.21.
(d) The educational level of each party at the time of
marriage and at the time the action is commenced.
(e) The earning capacity of the party seeking maintenance,
including educational background, training, employment skills, work
experience, length of absence from the job market, responsibilities
for children under either an award of custody or physical care, and

8
This figure includes $4500 from nursing, $4720 from teaching, and $3900 from the
summer camp.
 10

the time and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
(f) The feasibility of the party seeking maintenance becoming
self-supporting at a standard of living reasonably comparable to
that enjoyed during the marriage, and the length of time necessary
to achieve this goal.
(g) The tax consequences to each party.
....
(j) Other factors the court may determine to be relevant in an
individual case.

Iowa Code § 598.21A(1) (2017). Iowa law is clear “that whether to award spousal

support lies in the discretion of the court, that we must decide each case based

upon its own particular circumstances, and that precedent may be of little value in

deciding each case.” In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015).

Rehabilitative spousal support is “a way of supporting an
economically dependent spouse through a limited period of re-
education or retraining following divorce, thereby creating an
incentive and opportunity for that spouse to become self-
supporting.” The goal of rehabilitative spousal support is self-
sufficiency and for that reason “such an award may be limited for
extended depending on the realistic needs of the economically
dependent spouse.”

In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa 2008) (citations omitted).

In awarding Misha rehabilitative spousal support, the district court

explained:

[Misha] is fully capable of self-support and has no health issues that
would get in the way. However, the court’s property division has
effectively removed [her] from the work force except for her
occasional shifts as a nurse. She is close to completing her master’s
degree in nursing that will give her a source of income from teaching.
She needs 20 credits to complete it. Depending on job availability,
she may be able to expand the number of hours she is working as a
nurse but that expansion must not detract from her ability to complete
her education.

We have addressed actual and imputed income above, and find $21,120 is a

reasonable annual income for spousal-support purposes. Upon consideration of
 11

the circumstances in this case and the factors contained in Iowa Code section

598.21A(1), we agree with Mark that the award of spousal support in favor of Misha

was excessive in both duration and amount and results in an inequity between the

parties. While it is likely Misha will finish her master’s program within one year of

the dissolution and may need a short transition time thereafter to find full-time

employment, the record does not include evidence that Misha is in need of spousal

support in the amount or duration awarded by the district court; we also question

Mark’s ability to pay the award. See, e.g., In re Marriage of Stenzel, 908 N.W.2d

524, 533 (Iowa Ct. App. 2018) (noting the amount and duration of spousal support

is “primarily predicated” on need and the ability to pay). Considering the

circumstances and factors, we modify the spousal support award in favor of Misha

to $1000 per month for one year from the time the decree was entered, followed

by $500 per month for six months.

C. Child Support

A recalculation under the current guidelines,9 amounts to a child-support

obligation for Mark in the amount of $910.81 per month.10 We modify Mark’s child-

support obligation under the decree to that amount. Given the limited duration of

9
See Iowa Ct. R. 9.1 (“The child support guidelines contained in this chapter are hereby
adopted, effective January 1, 2018. The guidelines shall apply to cases pending
January 1, 2018.”); In re Marriage of Roberts, 545 N.W.2d 340, 343 n.2 (Iowa Ct. App.
1996) (noting pending cases for purposes of child support guidelines include those
pending on appeal).
10
In our calculation, we use annual incomes for Mark in the amount of $80,000 and
$21,120 for Misha. We then deduct $12,000 in annual spousal support ($1000 per month)
for Mark and add the same for Misha. See Iowa Ct. R. 9.5(1)(a)(1). Mark does not
challenge the tax designations used by the district court, so we use those variables in our
calculation—Mark filing as single and claiming one tax dependent and Misha filing as head
of household and claiming two tax dependents and being awarded a qualified-additional-
dependent deduction.
 12

Misha’s spousal-support award coupled with an anticipated increase in her

income, we remand the matter to the district court for a determination of Mark’s

child-support obligation after his spousal-support obligation reduces to $500 per

month, also presuming Misha’s income will have increased by that time. The

foregoing support obligation shall apply to the duration between the entry of the

decree and the time the district court enters an order identifying Mark’s future

support obligation.

Mark also argues the court erred in retroactively modifying the temporary

child-support order. First, Mark argues the court was without authority to modify

the temporary order because it was an appealable order which was not appealed.

A temporary order setting child support is a final judgment that is appealable as a

matter of right. See, e.g., In re Marriage of Roberts, No. 07-0515, 2008 WL

4725158, at *2 (Iowa Ct. App. Oct. 29, 2008); In re Marriage of Laughlin, No. 05-

0516, 2006 WL 228985, at *1 (Iowa Ct. App. Feb. 1, 2006); In re Marriage of Lee,

No. 99-1720, 2000 WL 1289144, at *3 (Iowa Ct. App. Sept. 13, 2000); O’Hara v.

Lukemyres, No. 99-0185, 2000 WL 18856, at *2 (Iowa Ct. App. Jan. 12, 2000).

While we agree with Misha the court may correct, vacate, or modify a final

judgment or order to “right a wrong” resulting from Mark’s dishonesty, the court

may only do so “[u]pon timely petition and notice under rule 1.1013.” Iowa R. Civ.

P. 1.1012. Those procedures were not followed here. While a de novo review of

the record makes abundantly clear that Mark was less than candid with the court

concerning his income in relation to the temporary-matters hearing,11 we find

11
The district court concluded Mark failed to disclose his unemployment income. We
agree with Mark that this conclusion was incorrect. However, the record shows Mark failed
 13

correction or modification of the prior final judgment was not properly before the

court, and the court’s sua sponte retroactive modification of the temporary-matters

order was therefore error. We therefore modify the decree to vacate the portions

that retroactively modified Mark’s child-support obligation under the temporary-

matters order.

D. Property Distribution

Mark challenges the district court’s property distribution. He does not

dispute any of the court’s valuations of property; he only challenges the district

court’s decision to award him all of the business assets. However, while Mark

stated his willingness in his testimony to allow Misha to receive all of the business

assets, other than the heating-and-cooling business, Mark’s principal request was

that he not be liable for any business debts he could not control, this coming after

Misha’s testimony that she would generally be unable to refinance the business

debts in order to relieve Mark from any liability in relation thereto. When asked

what he would like the court to do in the event Misha could not refinance the

business to relieve him of liability within ninety days, Mark responded, “To award

them to me or to sell them.” While Mark later noted that he “would rather everything

be sold,” he continued to testify to his willingness to receive the business assets

as a going concern so long as he would “be in control.” He also stated his ability

to pay Misha her share of the equity with a check. The court granted Mark’s

to disclose other income he was clearly receiving. Specifically, Mark was receiving $400
per month for rent from a tenant. He was also making money through the heating-and-
cooling business. We note the court’s incorrect conclusion causes us no pause in
adopting as our own the district court’s “serious concerns” for Mark’s credibility and
observation that “[i]t is clear he is willing to lie in court proceedings.”
 14

alternative request in full. Mark cannot be heard on appeal to complain about

being awarded these assets when he acquiesced to the same. See, e.g., Jasper

v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting a litigant “cannot deliberately

act so as to invite error and then object because the court has accepted the

invitation”); Odegard v. Gregerson, 12 N.W.2d 559, 562 (Iowa 1944) (same).

E. Visitation

Mark argues the visitation time provided to him in the decree is inadequate.

Upon our de novo review, we disagree. “Liberal visitation rights are in the best

interests of the children” and children “should be assured the opportunity for the

maximum continuing physical and emotional contact with both parents.” In re

Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993); accord Iowa Code

§ 598.41(1)(a). “Although liberal visitation is the benchmark, our governing

consideration in defining visitation rights is the best interests of the children, not

those of the parent seeking visitation.” In re Marriage of Brainard, 523 N.W.2d

611, 615 (Iowa Ct. App. 1994).

The decree provides Mark with visitation every other weekend from Friday

afternoon through Sunday evening, three-and-one-half hours one weeknight per

week, alternating holidays, and two weeks in the summer. Mark and Misha

struggle to interact civilly with each other, and a visitation schedule with frequent

contact between the two would undoubtedly be detrimental to the children. The

separation and dissolution have been fraught with conflict—both parties alleged

abuse during these proceedings and used property as leverage against the other.

Of particular note is the parties’ inability to drop off and pick up the children without

conflict. The record discloses multiple instances of such conflict. Furthermore,
 15

Mark and Misha are unable to communicate with each other. They have been

unable to communicate about the children’s activities and well-being. Throughout

the marriage, Misha acted as primary caretaker for the children. She scheduled

the children’s doctor appointments and primarily provided them with transportation.

Furthermore, Mark lived in Minnesota for an extended period of time during the

marriage, visiting the children only on weekends. “[S]tability and continuity of

caregiving are important factors that must be considered in custody and care

decisions.” In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). Finally,

the children prefer to spend their time with Misha; spending time in Mark’s care

causes them anxiety. The record also reflects that Mark has not been supportive

of the children’s relationship with Misha.

Because of these reasons, the court’s visitation schedule did not provide

inadequate contact between Mark and the children. The court’s schedule allows

the children to remain in a stable environment with Misha continuing as the primary

caregiver while allowing the children to continue their relationship with Mark. We

affirm the district court’s visitation schedule.

F. Attorney Fees

Mark challenges the district court’s award of attorney fees in favor of Misha

in the amount of $20,000. “We review this award for an abuse of discretion.” See

In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). This is our most

deferential standard of review. See State v. Roby, 897 N.W.2d 127, 137 (Iowa

2017). “Trial courts have considerable discretion in awarding attorney fees.” In re

Marriage of Witten, 672 N.W.2d 768, 784 (Iowa 2003) (quoting In re Marriage of

Guyer, 522 N.W.2d 818, 822 (Iowa 1994)). The fees must be fair and reasonable
 16

and whether they should be awarded depends on the respective abilities of the

parties to pay. Id. Upon our de novo review of this highly contentious litigation,

we are unable to say the district court abused its discretion in its attorney fee

award. In any event, the court factored the award into the property distribution,

and we conclude a vacation or any downward modification of the award would

render the distribution inequitable. We affirm the award of attorney fees.

Finally, Misha requested an award of appellate attorney fees. An award of

appellate attorney fees is not a matter of right but rests within this court’s discretion.

In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining

whether to award 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 district court’s decision on appeal. Id. In

consideration of these factors, we decline to award appellate attorney fees to

Misha. Costs on appeal are assessed equally between the parties.

IV. Conclusion

We modify the amount and duration of rehabilitative spousal support to

$1000 per month for one year from the time the decree was entered, followed by

$500 per month for six months. We modify Mark’s child-support obligation under

the decree to $910.81 per month. Given the limited duration of Misha’s spousal-

support award coupled with an anticipated increase in her income, we remand the

matter to the district court for a determination of Mark’s child-support obligation

after his spousal-support obligation decreases to $500 per month. The foregoing

support obligation shall apply to the duration between the entry of the decree and

the time the district court enters an order identifying Mark’s future support
 17

obligation. We find correction or modification of Mark’s temporary child-support

obligation was not properly before the court, and the court’s sua sponte retroactive

modification of the temporary-matters order was therefore error. We therefore

modify the decree to vacate the portions that retroactively modified Mark’s child-

support obligation under the temporary-matters order. We affirm the district court’s

property distribution in its entirety and the award of attorney fees in favor of Misha.

We deny Misha’s request for appellate attorney fees. Costs on appeal are

assessed equally between the parties.

AFFIRMED AS MODIFIED AND REMANDED.