IN THE COURT OF APPEALS OF IOWA
No. 16-1784
Filed June 21, 2017
IN RE THE MARRIAGE OF CAROL LYNN GUPTON
AND WENDEE KAY BROWN
Upon the Petition of
CAROL LYNN GUPTON,
Petitioner-Appellee,
And Concerning
WENDEE KAY BROWN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
Wendee Kay Brown appeals the child custody and division of property
provisions of the district court’s decree dissolving her marriage to Carol Lynn
Gupton. AFFIRMED.
Michael J. Winter, Council Bluffs, for appellant.
Scott D. Strait, Council Bluffs, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.
Wendee Kay Brown appeals the child custody and division of property
provisions of the district court’s decree dissolving her marriage to Carol Lynn
Gupton. Wendee claims the district court should have granted her physical care
of the children, considered Carol’s premarital assets in dividing the parties’
assets and debts, valued Carol’s business at $10,000, and entered a qualified
domestic relations order. We find the district court properly awarded shared
physical care, properly divided the parties’ assets and debts, and entered an
appropriate qualified domestic relations order. We affirm the district court.
I. Background Facts and Proceedings
Wendee and Carol began their relationship in 1994. They started
cohabiting the same year. After a brief separation they began building a new
house together in Carter Lake, Iowa, in 2000. Carter Lake is located west of the
Missouri River on eastern edge of Omaha. Wendee gave birth to a daughter in
2004 and a son in 2010. Carol legally adopted the daughter in 2008 and the son
in 2010. After same sex marriage was legalized in Iowa, Wendee and Carol
married on September 4, 2010.
Wendee worked for the Omaha Fire Department throughout the
relationship, at times working twenty-four hour shifts. At the time of dissolution,
Carol worked for the City of Papillion Fire Department, where she started in
2014. She previously was self-employed selling public access defibrillators.
Carol filed a petition for dissolution on September 24, 2015. Wendee and
Carol separated in February 2016. Carol moved to Papillion, Nebraska, roughly
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sixteen miles from Carter Lake. Carol now lives with her paramour, Elizabeth.
Elizabeth has shared physical care of her own five children.
Trial was held July 19 and a dissolution decree was entered August 31.
The district court awarded joint legal custody and shared physical care of the
parties’ minor children and divided the couple’s property. Wendee and Carol
filed motions to enlarge or amend findings, pursuant to Iowa Rule of Civil
Procedure 1.904(2), on September 6 and September 9 respectively. The district
court entered its ruling on the post-trial motions September 26. Wendee filed a
notice of appeal on October 24, 2016.
II. Standard of Review
Equitable actions are reviewed de novo. Iowa R. App. P. 6.907. We
examine the record and adjudicate the rights of the parties anew. In re Marriage
of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Because the district
court is in a unique position to hear the evidence, we defer to the district court’s
determinations of credibility. In re Marriage of Brown, 487 N.W.2d 331, 332
(Iowa 1992). While our review is de novo, the district court is given latitude to
make determinations, which we will disturb only if equity has not been done. In
re Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005).
III. Error Preservation
Carol claims Wendee did not properly preserve error. After the district
court’s decree both Wendee and Carol filed rule 1.904(2) motions asking the
district court to enlarge or amend its findings. The district court ruled on the
parties’ motions, and Wendee filed her appeal within thirty days of the district
court’s ruling on the 1.904(2) motions. However, Wendee’s appeal was filed
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more than thirty days after the original decree by the court. In her brief, Carol
claims Wendee’s motion “was simply a rehashing of the legal and factual
arguments made at trial” that should not toll the time allowed for appeal.
“An application for interlocutory appeal must be filed within 30 days after
entry of the challenged ruling or order. However, if a motion is timely filed under
Iowa R. Civ. P. 1.904(2), the application must be filed within 30 days after the
filing of the ruling on such motion.” Iowa R. App. P. 6.104(1)(b)(2). However,
only a proper rule 1.904(2) motion tolls the time to appeal. Hedlund v. State, 875
N.W.2d 720, 725 (Iowa 2016).
A proper rule 1.904(2) motion does not merely seek reconsideration
of an adverse district court judgment. Nor does it merely seek to
rehash legal issues adversely decided. A rule 1.904(2) motion is
ordinarily improper if it seeks to enlarge or amend a district court
ruling on a question of law involving no underlying issues of fact.
Likewise, a rule 1.904(2) motion that asks the district court to
amend or enlarge its prior ruling based solely on new evidence is
generally improper. Ordinarily, a proper rule 1.904(2) motion asks
the district court to amend or enlarge either a ruling on a factual
issue or a ruling on a legal issue raised in the context of an
underlying factual issue based on the evidence in the record.
Homan v. Branstad, 887 N.W.2d 153, 161 (Iowa 2016) (internal citations
omitted).
We find Wendee’s motion was proper and asked the district court to
amend its ruling based on factual issues present in the record. Moreover, rule
1.904 was amended effective March 1, 2017, as have Iowa Rules of Appellate
Procedure 6.101(1)(b) and 6.104(1)(b)(2), to permit an appeal within thirty days
of a ruling on such a motion without the necessity of examining the propriety of
the motion. Wendee’s appeal was therefore timely, and error was preserved.
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IV. Custody
Wendee claims the district court should not have awarded shared physical
care of the parties’ minor children. When determining custody, the best interests
of the children are the “controlling consideration.” In re Marriage of Leyda, 355
N.W.2d 862, 865 (Iowa 1984). A non-exclusive list of factors has been set out by
our supreme court and used to determine the best interests of the child when
deciding physical care. In re Marriage of Winter, 223 N.W.2d 165 (Iowa 1974).
We also consider portions of the Iowa Code. In re Marriage of Hansen, 733
N.W.2d 683, 696 (Iowa 2007).
When considering whether joint physical care is in the best interests of the
children, the court should consider: (1) the stability and continuity of caregiving,
(2) the parents’ ability to communicate, (3) a history of conflict between the
parents, and (4) the degree to which the parents agree to a parenting approach.
Id. at 696-99. These factors are not exclusive, nor should all factors be given
equal weight. Id. at 699.
The first factor to consider is maintaining stability and the continuity of
caregiving in the children’s lives. Testimony at trial showed both parents had
been very involved in the children’s lives. Carol, the parties’ daughter, a
neighbor, and others testified Carol shared the responsibilities of parenting
equally. Wendee testified the parties had been equally involved in raising their
children until problems developed in the marriage. Wendee also testified Carol
would be a good parent into the foreseeable future. We find shared physical
care will ensure continuity of caregiving.
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The second factor is to consider the parents’ ability to communicate. The
evidence in the record reveals a civil and cooperative relationship between the
parents regarding the children. Both parties should be commended for their
ability to put the best interests of the children before their continuing dispute.
The parties have been able to maintain civil communication and flexibility
regarding the children’s schedules and activities. We find the parents are able to
fully and effectively communicate regarding the children. This factor weighs in
favor of shared physical care.
The third factor to consider is the level of conflict between the parents.
The circumstances surrounding dissolution have certainly created conflict
between the parties, which initially is quite common. Testimony presented at trial
was split. Wendee testified the children had witnessed Carol treating her poorly
and were affected by the parties’ “hatred and anger.” Carol claims the parties
screened their conflict from the children. Private communications between the
parties certainly show conflict and disagreement on many topics, but we agree
with the district court’s assessment “the parties have had a more strained
relationship since the breakdown of their marriage . . . [but] neither party has
allowed such tensions to affect their relationship with the children.” This factor
weighs in favor of shared physical care.
The final Hansen factor to consider is the degree to which the parents
agree on their approach to parenting. Wendee testified Carol’s morals were a
bad example to the children and that the children were exposed to “moral values”
Wendee disagreed with. However, both parents agree on the level of the
children’s involvement in extra-curricular activities. Both parents also support
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and encourage the children in scholastic and extra-curricular activities. The
parents also have similar approaches to discipline. This factor weighs in favor of
shared physical care.
The Hansen factors are not exclusive and so we turn to other
considerations. Wendee notes the children currently attend a school both parties
agree on, however, the parties disagree what school the children should attend
when they are no longer able to attend Montessori school. This issue may create
problems within the co-parenting relationship and so weighs against shared
physical care. The parties’ eleven-year-old daughter also testified at trial. She
testified she would rather live full time with Wendee. The daughter also testified
Carol would become angry with her, drinks excessively, and does not interact
with her or her brother when they are in Carol’s care. The testimony of the
daughter and her wishes weigh against shared physical care.
Wendee also argues her bond as the biological parent should weigh in her
favor. She provided no case law or statute(s) in support of her assertion. In fact,
after a review of relevant case law we find no preference exists. Our court has
previously granted adoptive parents physical care over biological parents. See,
e.g., In re Marriage of Heifner, No. 15-1285, 2016 WL 3556529 (Iowa Ct. App.
June 29, 2016); In re Marriage of Fondell, No. 02-1537, 2003 WL 1970731 (Iowa
Ct. App. Apr. 30, 2003); In re Marriage of McIntosh, No. 98-1735, 1999 WL
823646 (Iowa Ct. App. Oct. 15, 1999). We give no extra weight to the biological
relationship.
On the balance of factors, we find the best interests of the children will be
served by shared physical care.
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V. Property Division
Iowa is an equitable distribution jurisdiction. In re Marriage of Schriner,
695 N.W.2d 493, 496 (Iowa 2005). When dividing property we look to all marital
assets at the time of the dissolution and exclude only gifts and inheritances. Id.
To determine what constitutes an equitable division in a dissolution proceeding
we must look to the factors listed in Iowa Code section 598.21(5) (2015). These
factors include the length of the marriage, premarital property brought into the
marriage by each party, the individual contributions to the marriage by the
parties, age, health, earning capacity, and other relevant circumstances. In re
Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005). The parties note their
relationship and the comingling of funds began far before their legal marriage.
However, the relationship could not have been legally recognized, even as a
common law marriage, at the time they began to comingle funds and cohabit.
We must calculate the length of their marriage from the legally recognized
marriage on September 4, 2010.
a. Premarital Property
Wendee claims the district court should have considered Carol’s
premarital assets when dividing the parties’ property. Premarital property may be
included when dividing property in a dissolution. Schriner, 695 N.W.2d at 496.
The district court did not consider two premarital accounts owned by Carol
totaling nearly $200,000. The district court also did not consider the premarital
value of Wendee’s investment account. At trial, on direct examination, Wendee
asked the parties’ assets be divided from the date of the marriage forward. The
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district court seems to have given effect to Wendee’s wishes. We find the district
court did equity in setting aside those premarital assets.
b. Valuation of Carol’s Business
Wendee claims the trial court should not have valued Carol’s business at
$10,000. At trial, Carol testified her business, PPE, had assets worth $42,000.
She further testified the business did not grow but “has maintained” the same
value it had before the marriage in 2010. Wendee presented evidence showing
the assets totaled $84,000. We find the trial court considered only the
appreciation in value during the course of the marriage. Therefore, “we believe
the findings were well within the range of the evidence and should not be
disturbed on appeal.” See In re Marriage of Wiedemann, 402 N.W.2d 744, 748
(Iowa 1987).
VI. Qualified Domestic Relations Order
Wendee also claims the district court entered a qualified domestic
relations order (QDRO) that erroneously allowed Carol to participate in
post-dissolution retirement benefit increases. Pension benefits are divisible
marital property in Iowa. In re Marriage of Branstetter, 508 N.W.2d 638, 641-42
(Iowa 1993). Our courts have established two methods for dividing pensions:
dividing the present value of the pension plan, or assigning a percentage paid
when the pension benefits mature. In re Marriage of Benson, 545 N.W.2d 252,
255 (Iowa 1996). Additionally, “there are two main types of pension plans:
defined-benefit plans and defined-contribution plans.” In re Marriage of Sullins,
715 N.W.2d 242, 248 (Iowa 2006). The district court utilized the percentage
method.
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Wendee’s employer also offers a deferred retirement option program.
This program allows Wendee to defer retirement in order to allow the retirement
plan benefits to continue to grow. Wendee has not yet elected to participate in
this program. Pursuant to the district court’s QDRO, if Wendee received “a
dividend, a cost of living increase, or any other post retirement or disability
benefit increase,” Carol would receive a proportionate share of the increase.
Wendee claims this distribution improperly allowed Carol to receive
post-dissolution increases to her pension benefits. We have previously held
spouses are not entitled to any post-dissolution increases in retirement benefits.
See In re Marriage of Klein, 522 N.W.2d 625, 628 (Iowa Ct. App. 1994) (holding
pension funds accrued after the dissolution should not be subject to division).
“An increase in pension rights resulting from contributions made after a decree of
dissolution but before retirement is the result of efforts made after the dissolution”
and should not be included in the marital estate. Id.
However, under the percentage method if Carol’s value is firmly
established at the time of dissolution, she will receive no return on her
investment. See Benson, 545 N.W.2d at 257. The district court’s formula
avoided this mistake and correctly determined the value should be set “at the
time of maturity,” when Wendee begins to collect the benefits, not at the time of
dissolution. See id. We affirm the district court’s QDRO and allow Carol to
participate in any increases to the pension benefits in the circumstances
described in the order.
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VII. Attorney Fees and Costs of Appeal
Carol claims she should be awarded attorney fees and Wendee should be
made to pay the entire cost of the appeal. “An award of attorney's fees is not a
matter or right but rests within the discretion of the court.” Id. at 258. We find an
award of attorney fees is inappropriate in this case. We assess the costs of the
appeal equally to the parties.
AFFIRMED.