In re the Marriage of Keller ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0122
Filed September 22, 2021
IN RE THE MARRIAGE OF JODIE LYNN KELLER
AND MARK ALAN KELLER
Upon the Petition of
JODIE LYNN KELLER,
Petitioner-Appellee,
And Concerning
MARK ALAN KELLER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clarke County, John D. Lloyd, Judge.
Mark Keller appeals an award of physical care, the distribution of assets,
and the denial of spousal support. AFFIRMED AS MODIFIED AND REMANDED.
David E. Brick and Allison M. Steuterman of Brick Gentry, P.C., West Des
Moines, for appellant.
Donna R. Miller of Miller, Zimmerman & Evans, PLC, Des Moines, for
appellee.
Considered by Tabor, P.J., and Greer, J., and Doyle, S.J.*
* Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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TABOR, Presiding Judge.
Jodie and Mark Keller divorced after nearly two decades of marriage. Mark
now challenges the physical care arrangement for their middle child, M.A.K.; the
child support calculation; the division of assets; an order to return funds; and the
denial of spousal support. Jodie defends the decree and seeks appellate attorney
fees. Because the district court did equity on the financial matters, we affirm those
decisions. But because the decree lacks a compelling reason for splitting physical
care of the siblings, we modify the determination of M.A.K.’s physical care and
remand for child support recalculation. Finding the parties are on similar fiscal
footing, we decline Jodie’s request for appellate attorney fees.
I. Facts and Prior Proceedings
The Kellers were married in 2002. They have five children,1 three of whom
were minors during the divorce proceedings.2 After their separation, Mark and
Jodie enjoyed joint physical care of the children. But over time that arrangement
deteriorated. Rather than continue to split time between their parents’ homes, the
two daughters—in the words of the district court—“chose sides.” M.E.K. decided
to live with Mark, while her younger sister, M.A.K., stayed with Jodie. M.E.K.
turned eighteen while this appeal was pending and will no longer be subject to the
custody arrangements.
At the divorce trial, Mark requested physical care of M.E.K. Jodie did not
contest this arrangement. But Mark did object to M.A.K. staying with Jodie. After
1 Before their marriage, Jodie had two children, who were adopted by Mark.
2 J.Z.K. was born in 2007; M.A.K. was born in 2005; M.E.K. was born in 2003.
3
hearing testimony from Mark, Jodie, and M.A.K.’s therapist, the district court split
custody, granting each parent physical care of one of the daughters.3
Since 1994, Jodie has worked for the Iowa Department of Human Services
(DHS) in central Iowa. In the years before their divorce, Jodie earned between
$75,000 and $82,000. By contrast, Mark’s career took him farther from home. He
mostly stayed on the water, at various times working in offshore drilling, on a cruise
ship, and as a commercial fisherman. In 2005, Mark bought a boat and a red
snapper permit, which he personally used in his commercial fishing enterprise. But
a change in federal regulation transformed the permit into an Individual Fishing
Quota (IFQ). To maximize his profits, Mark leased the IFQ rather than use it
himself. Mark treated those fees as his primary income. In the years before their
separation, the IFQ lease produced between $108,000 and $130,000 annually.
During the divorce proceedings, Jodie retained her DHS job. But she
sought a new position within the agency. As with any new job, this position came
with some benefits and some drawbacks: offering more stable and regular hours,
but no chance for overtime and a lower income. Like Jodie, Mark’s employment
prospects have changed since the divorce proceedings began. He has continued
to lease the IFQ. But health issues and the realities of (part-time) single
parenthood ended his mariner days. And although he has applied for more
traditional forms of employment, he hasn’t landed a job yet.
The IFQ played a starring role in district court, and it has an encore
performance in this appeal. First, the court determined the IFQ was marital
3Unlike his older sisters, J.Z.K.’s physical care arrangement did not change. He
continues to spend more-or-less equal time with both parents.
4
property, and, as such, subject to equitable distribution. Over Mark’s objection,
the court divided the IFQ equally between Mark and Jodie. The court also ordered
Mark to reimburse $20,000 in IFQ income he took from the joint bank account.
Second, as an income-generating asset, the IFQ factored into the court’s
spousal and child support analyses. Because Jodie and Mark had different plans
for their share of the IFQ—to sell and to retain, respectively—the court calculated
different incomes from the asset. Whereas Mark was assigned $67,000—one-half
of the IFQ’s historic earnings—Jodie was responsible for $19,500—the expected
return of investment from the IFQ’s sale. Using these numbers, the court denied
Mark’s request for spousal support, finding he was self-sufficient. Similarly, these
figures factored into the child support calculation. In round numbers, Mark owed
a net amount of $200 per month while all three children were minors, $900 after
M.E.K. turned 18, and $40 after M.A.K. turned 18.
Mark now appeals, raising five issues: (1) the physical care determination
for M.A.K., (2) the child support calculation, (3) the IFQ’s fate, (4) the $20,000
reimbursement, and (5) the spousal support denial. Jodie resists on each point
and requests appellate attorney fees.
II. Scope and Standards of Review
We review dissolution cases de novo. Iowa R. App. P. 6.907; In re Marriage
of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). We give weight to the fact findings
of the district court, particularly on witness credibility, but they do not bind us. See
In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Because the particular
facts of each case are vital to the resolution, “precedent is of little value.” In re
Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009) (citation omitted).
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III. Analysis
A. Should the parents have joint physical care of the two youngest
children?
Mark first challenges the award of M.A.K.’s physical care to Jodie. He
contends the parents should have joint physical care of both M.A.K. and J.Z.K.
We first consider whether joint physical care is desirable under these
circumstances. There is no presumption for joint physical care. In re Marriage of
Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Instead, an award hinges on the
child’s best interests. Id. When considering joint physical care, we turn to this
non-exhaustive list of factors: (1) the promotion of stability and continuity; (2) the
degree of communication and mutual respect between the parents; (3) the level of
discord and conflict before the divorce; and (4) how well the parents agree on
matters of routine care. Id. at 697–700.
As for the first factor, both Mark and Jodie participated in child care during
their marriage.4 And, early in the divorce proceedings, they entered a temporary
agreement providing for joint physical care of all three children. For about a year,
Mark and Jodie operated under that agreement without major issue. It was only
five weeks before trial that M.A.K. refused to honor the shared-care arrangement.
But even when their daughters each aligned with one parent, the other parent tried
to repair the rifts. For example, Mark urged M.E.K. to reconcile with Jodie. And
Jodie encouraged M.A.K. to communicate with Mark. But most telling is that the
4 Because Mark’s mariner work frequently took him away from home, Jodie was
often the sole caregiver. But when Mark wasn’t on a job, he was a stay-at-home
father.
6
shared-care arrangement continues for their youngest child, J.Z.K. Given these
circumstances, we believe joint physical care is appropriate under the Hansen
factors.
We next consider whether joint physical care is in M.A.K.’s best interests.
We begin with the presumption that “siblings should usually not be separated.” In
re Winter’s Marriage, 223 N.W.2d 165, 166 (Iowa 1974) (citation omitted). This
presumption recognizes siblings should not become ships passing in the night after
a divorce. Instead, because siblings benefit from constant association, courts must
identify a good and compelling reason before ordering separation. In re Marriage
of Smiley, 518 N.W.2d 376, 380 (Iowa 1994); see Iowa Code § 598.41(5)(a) (2019)
(setting out that care “determination should be accompanied by specific findings
of fact and conclusions of law that the awarding of joint physical care is not in the
best interest of the child”).
Here the district court’s findings of fact leave us wanting for that reason.
And the trial record itself is no more fruitful. On the surface, separating the teenage
sisters cements battle lines that formed in the months before the divorce trial.
Apparently, those fronts reflected the teenagers’ preferences. Granted, M.A.K.’s
physical-care preference is a valid factor. See In re Marriage of Behn, 416 N.W.2d
100, 101–02 (Iowa Ct. App. 1987). But “[d]eciding [physical care] is far more
complicated than asking children with which parent they want to live.” Id. at 101.
For the purposes of appeal, we must consider the reasons behind her decision.
7
And here M.A.K.’s reasoning gives us pause. In large part, her desire to
live with Jodie was motivated by a dispute with her older sister, M.E.K.5 The record
shows M.A.K. “didn’t like living at Mark’s anymore, because she [was] not getting
along with [her sister].” Jodie testified that M.A.K. was upset because M.E.K.
“didn’t have any rules or expectations.” And M.A.K. preferred to live with Jodie
“because she enjoyed having her own bedroom at her mother’s where at [Mark’s]
house, she had to share a bedroom with her sister.”
It is true, in some cases, the negative influence of one sibling over another
may be cause to separate them. See, e.g., In re Marriage of Jones, 309 N.W.2d
457, 461–62 (Iowa 1981). But that situation is not present here. M.A.K.’s
frustration with M.E.K. is typical of teenage siblings. M.A.K. complains M.E.K.
“seems to get away with more, [and] do whatever she wants.” M.A.K. prefers her
own bedroom, away from her sister.
But those reasons do not suggest the sisters need to be separated or that
the court should have enshrined what may have otherwise been a temporary
dispute. More importantly for Mark, the district court did not provide sound reasons
under Iowa Code section 598.41(5)(a) for denying his request for joint physical
care of M.A.K.
What’s more, we can’t ignore the unfortunate consequence of the district
court’s physical-care decision: it limited the contact between M.A.K. and her
5The district court did not acknowledge this dispute in its findings—instead noting
M.E.K. and M.A.K. “have chosen sides” and refuse to have anything to do with the
other parent. While the record shows continuing animosity between Jodie and
M.E.K., even Jodie acknowledged M.A.K. desired a “meaningful relationship” with
her father.
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younger brother, J.Z.K. Nothing in the record suggests these two siblings, who
remain impacted by the decree, have a troubled relationship. The modification
urged by Mark would provide these youngest siblings the benefit of a continued
close association through their teenage years. Finding no compelling reason to
separating these siblings, we believe joint physical care is appropriate for both
J.Z.K. and M.A.K.6 We remand for the district court to determine an appropriate
shared care schedule for M.A.K., along with J.Z.K., and to recalculate any child
support obligation.7
B. Did the district court equitably divide the Individual Fishing Quota?
Upon a dissolution of marriage, a court must divide all marital property
equitably between the parties. Iowa Code § 598.21(5). This statute makes “no
effort to include or exclude property from the divisible estate by such factors as the
nature of the property of the parties, the method of acquisition, or the owner.” In
re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).
Mark’s main point of contention is the IFQ, which began as a permit to fish
for red snapper. Likely because Iowa is landlocked, our appellate courts have not
addressed this kind of asset before. So we turn to Alaska cases, where the issue
is more common. The Alaska Supreme Court has held that “an IFQ creates a
property interest that may be subject to division in a divorce.” Brennan v. Brennan,
425 P.3d 99, 106 (Alaska 2018) (citing Ferguson v. Ferguson, 928 P.2d 597, 600
(Alaska 1996)); see also McGee v. McGee, 974 P.2d 983, 989 (Alaska 1999)
6 We do not disturb M.E.K.’s physical care arrangement because it was
uncontested and she is no longer a minor.
7 Because we modify the physical care award, we do not consider Mark’s
objections to the testimony from M.A.K.’s therapist relaying the child’s preferences.
9
(holding quota shares were based on joint efforts during the marriage and thus
were divisible assets).
Mark does not outright contest the status of the IFQ as a marital asset, but
rather argues its division was inequitable. Because the IFQ was “his asset,” “his
means of income,” “in his name,” and Jodie “did little with the IFQ,” he believes the
district court should have awarded the IFQ to him in its entirety.
Because we are more familiar with farming than fishing quotas in Iowa, Mark
likens the IFQ to an owner-operated farm. He contends the court should have
granted the whole IFQ to him rather than dividing it. Indeed, our supreme court
has sometimes authorized one party to retain farm ownership. See In re Marriage
of Callenius, 309 N.W.2d 510, 514–15 (Iowa 1981) (recognizing “considerable
effort that must be expended” and potential to “decimate the assets of the parties”
absent the farmer’s skill); see also In re Marriage of Anderson, 243 N.W.2d 562,
563 (Iowa 1976) (affirming award of farm to one party when “in the best interest of
all concerned”).
But Mark was not the owner-operator of the IFQ; its value existed
independent of his skills. True, Mark’s skills were a factor when the IFQ was a
fishing permit. But those days are gone. Since the federal government converted8
Mark’s snapper permit into an IFQ, Mark’s primary role has been finding a lessee.
While that role requires effort, it does not compare to the owner-operator in
8 The quota related to the individual permit’s historic fishing numbers between
1990 and 2004. Because that period predated Mark’s ownership, his own fishing
contributions did not impact the quota or the IFQ’s value. That said, the record
shows that Mark anticipated the possibility of the conversion and bought this red
snapper permit because it might yield a large quota.
10
Callenius. And, like the district court, we are not convinced by Mark’s testimony
“that he spends any significant time in the management of the IFQ.” Mark has
leased the IFQ to the same individual almost exclusively. What’s more, the leasing
process is simple: the price is determined mainly by snapper’s price per pound and
a government-run website is used to carry out the lease.
Simply put, Mark did not act as skipper; the ship was on cruise control. This
is not a case in which the IFQ’s value would sink but for Mark’s efforts. And as the
district court aptly stated: “As far as this record shows, division of the IFQ will only
result in each party receiving . . . [a] percentage . . . while the total income realized
from the entirety of the IFQ will remain the same.” So rather than acting as an
owner-operator, Mark received a passive income from the IFQ. Because this
situation differs from Callenius, the district court was free to divide the IFQ as it
saw fit, so long as the overall distribution was equitable.
And here the district court reached a near-equal final distribution. So we
decline to disturb its decision.9 In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa
Ct. App. 2009) (“While an equal division of assets accumulated during the marriage
is frequently considered fair, it is not demanded.”).
C. Did the district court equitably distribute the joint account funds?
Mark also asserts his right to the IFQ’s earnings because it was “his
income.” Acting on this belief, Mark took $104,000 from a joint account before trial
9In his motion under Iowa Rule of Civil Procedure 1.904(2), Mark requested sixty—
rather than fifty—percent of the IFQ. We see no reason why that distribution would
be more equitable than the present one. We give district courts wide latitude for
asset distribution. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).
We only reverse where there is a “failure to do equity.” Id. (quoting In re Marriage
of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997)).
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and moved it into a separate account. But the court ordered Mark to reimburse
$20,000 to Jodie.
Contesting this decision, Mark points out Jodie took $25,000 from the joint
account. Because the court did not order Jodie to return any money, Mark calls
foul. But the court considered the overall finances of the parties. And before
ordering repayment, the court decided each party could keep $25,000 from that
account. Even after this credit and other offsets, Mark held $45,000 more in joint
funds than Jodie. He is not entitled to relief on the reimbursement issue.
D. Did the court correctly calculate Jodie’s income?
Having divided the IFQ and redistributed some of its past income, the district
court next considered its future earnings. Based on prior years, the court
determined Mark would earn $67,000 annually from leasing his remaining half of
the IFQ. But the court settled on a different number for Jodie. Unlike Mark, Jodie
intended to sell her half of the IFQ.10 And to quote the district court: “allowing
[Jodie] to sell the asset and show no income from it for child support purposes
would produce a substantial injustice.” See Iowa Ct. R. 9.11(1). So, the court
imputed $19,500 annually to Jodie, representing the expected profits from the
investment of sale proceeds.
Highlighting the disparate treatment, Mark claims error. Mark argues it is
unfair for Jodie to sell her half of the IFQ and the court should have imputed rental
income to her. Jodie responds that she “has chosen to forego the annual lease
income from the IFQ and sell it.” She notes that “she may be reducing the lifetime
10 Before trial, Jodie sold her portion of the IFQ subject to it being awarded to her.
12
benefit she will receive from the asset, but that is her choice, and as long as she
is not doing it to intentionally reduce her child support obligation, she cannot be
penalized for her decision.” She contends the court’s decision to impute interest
income to her from the sale proceeds corrects any inequality.
We agree. Jodie will not be earning the IFQ rental income that Mark asks
us to assign her. See Iowa Ct. R. 9.5(1) (defining gross monthly income as the
“reasonably expected income from all sources”). Because the district court
reasonably calculated Jodie’s income, we will not alter its decision. Her imputed
annual income of $92,175 will be appropriate for determining child support on
remand.
E. Spousal Support
Finally, Mark requests spousal support. He seeks traditional spousal
support of $2000 per month until Jodie’s retirement. This type of aid is awarded
for “so long as a spouse is incapable of self-support.” In re Marriage of Francis,
442 N.W.2d 59, 63–64 (Iowa 1989). When deciding whether one spouse is entitled
to spousal support, we consider factors such as the parties’ ages, earning
potentials, and distribution of assets. Iowa Code § 598.21A. And we only disturb
a spousal-support decision if it fails to do equity. In re Marriage of Schenkelberg,
824 N.W.2d 481, 486 (Iowa 2012).
With these factors in mind, we conclude the district court’s denial of support
achieved equity between the parties. Mark is self-sufficient without help from
Jodie. He will earn nearly $70,000 a year from his half of the IFQ. And should he
13
obtain employment, his available resources will increase.11 On top of his income,
Mark received assets valued at over one million dollars in the property division.
Under these circumstances, we do not think the district court acted unfairly in
declining to award Mark spousal support. See In re Marriage of Mann, 943 N.W.2d
15, 23 (Iowa 2020) (upholding district court’s denial of spousal support where
spouse seeking support benefited from equal division of substantial marital
property).
F. Appellate attorney fees
Jodie requests $9,205 in appellate attorney fees. We award attorney fees
as a matter of discretion, not one of right. In re Marriage of Kurtt, 561 N.W.2d 385,
389 (Iowa Ct. App. 1997). We consider Jodie’s needs, whether she had to defend
on appeal, and Mark’s ability to pay. See id. Although Jodie successfully defended
against Mark’s challenges to the economic aspects of the decree, like Mark, she
is self-supporting, and awarding appellate fees is unnecessary.
AFFIRMED AS MODIFIED AND REMANDED.
11As the district court noted, even a full-time minimum wage job would increase
Mark’s annual income by over $10,000. Mark does not dispute this figure. And
despite her position at trial—namely that Mark could earn more than minimum
wage—Jodie does not claim error either.