In Re the Marriage of Amber Kay Killian and Trevor Joel Killian Upon the Petition of Amber Kay Killian, and Concerning Trevor Joel Killian ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1504
Filed July 30, 2014
IN RE THE MARRIAGE OF AMBER KAY KILLIAN
AND TREVOR JOEL KILLIAN
Upon the Petition of
AMBER KAY KILLIAN,
Petitioner-Appellant,
And Concerning
TREVOR JOEL KILLIAN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Tama County, Ian K. Thornhill,
Judge.
Amber Killian appeals the custody determination and economic provisions
in the district court’s dissolution decree. AFFIRMED AS MODIFIED AND
REMANDED.
Reyne L. See of Peglow, O’Hare & See, P.L.C., Marshalltown, for
appellant.
Teresa A. Rastede of Klatt, Odekirk, Augustine, Sayer, Teinen & Rastede,
P.C., Waterloo, for appellee.
Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.
Amber and Trevor Killian married in 2003 and divorced in 2013. The
district court entered a temporary order granting the parents joint physical care of
their three children and made that arrangement permanent in the final decree.
The court also allocated unreimbursed medical expenses, valued the parties’
home and vehicles, awarded the parties’ home to Amber subject to an
equalization payment to Trevor, allocated the tax dependency exemptions,
required each party to be responsible for his or her own credit card debt, and
held each party responsible for his or her own attorney fees. The court denied
Amber’s posttrial request to divide the children’s extracurricular expenses.
On appeal, Amber contends the court should have granted her physical
care. She also challenges the economic provisions noted above.
I. Physical Care
Amber contends the district court acted inequitably in ordering joint
physical care of the children. She argues (1) she was the primary caretaker
before and after the separation, (2) Trevor’s work schedules “provide[] no
consistency and little flexibility,” (3) the parties had a strained relationship that
included verbal abuse and ineffective communication about the children, (4) the
parents did not agree on day-to-day matters involving the children, (5) Trevor
temporarily denied her contact with the children after the separation, and (6) she
was about to give birth to a half-sibling from whom the children should not be
separated. We will address each of these considerations.
The parents’ historic pattern of caregiving is indeed an important
consideration in a joint physical care analysis. In re Marriage of Hansen, 733
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N.W.2d 683, 697 (Iowa 2007). The district court found that Amber provided “the
majority of the hands-on parenting of the children throughout the parties’
marriage” but stated this was “primarily due to the relative job responsibilities of
each party.” On our de novo review, we agree with these findings, which
implicate the first two arguments Amber raises.
Trevor conceded Amber provided most of the care for their first child when
he was an infant. He explained that he was deployed to Iraq before the child was
born and, when he returned, he “was scared” to handle the child. Later, he said
the parents shared many parenting responsibilities and continued sharing duties
following the birth of the other children. At the same time, he essentially
acknowledged that Amber was the primary caretaker before they separated.
Amber’s primary caretaking role was tied to Trevor’s erratic work schedule
as a deputy sheriff, which precluded consistent, hands-on care by him. Until
2010, Trevor worked night shifts. Then he switched to days for a little over two
years and was on a “seven-two-three-two schedule,” which required him to work
seven days a week from 8:00 A.M. to 4:00 P.M., with two days off, three days on,
and the following weekend off. Because this shift prevented him from taking the
children to summer daytime events, Trevor returned to a night shift shortly before
the dissolution petition was filed. Again, this was “a seven on schedule, two off,
three on schedule, two off.”
Before a temporary custody hearing, Trevor made arrangements to switch
to days on his “short week,” which would allow him to have the children for five
days and a weekend. The district court entered a temporary order providing for
weekly exchanges between the parents.
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Trevor found the temporary order unworkable because it required him to
have the children on his “long” rather than “short” week. He unsuccessfully
attempted to have the order changed. The effect of the order, in his view, was to
afford Amber de facto primary physical care during the proceedings.
By the time of trial, Trevor had made arrangements to completely move to
a day shift, with his “weekend off” being Wednesdays and Thursdays. He
testified, “I have done everything to ensure being on a day schedule to where
they’re in school at the same time I’m working.”
There is no question that Trevor’s work schedule made it difficult to
schedule equal time with the children. But the Iowa Supreme Court has stated
joint physical care does not require equal time with each parent. In re Seay, 746
N.W.2d 833, 835-36 (Iowa 2008). The key consideration is equal care rights. Id.
(citing Iowa Code § 598.1(4)). Trevor’s obligation to work every weekend meant
that he would be unable to have equal time with the children, but the joint
physical care arrangement at least allowed him equal rights to shared care.
Under the unique facts of this case, Trevor’s work hours favored a joint physical
care arrangement.
This brings us to the third consideration raised by Amber, the parents’
strained relationship and difficulty communicating. See Hansen, 733 N.W.2d at
698 (citing nature and extent of conflict between parents and ability of the former
spouses to communicate and show mutual respect). Amber testified, “I am told
things by him and I am made to believe that that’s the . . . way it is and it will
never be changed, that I just have to follow what he says and go with what he
says.” At the same time, she said she and Trevor were “civil to each other in
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front of” the kids and she communicated sufficiently with Trevor to manage the
changes in his work schedule. Trevor agreed the parents had communication
difficulties. Some of the difficulties stemmed from Amber’s relationship with a
person Trevor did not approve of and his unwillingness to accept her decision to
seek a dissolution of the marriage. We believe these difficulties were temporary.
See In re Marriage of Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009)
(stating that in the context of determining whether joint legal custody is
appropriate, “[t]he parties’ inability to communicate and cooperate must rise
above the ‘usual acrimony that accompanies a divorce.’”). While it is true the
parents argued and fought throughout the marriage, their disagreements were
not so entrenched as to preclude the level of communication that would be
needed to facilitate joint physical care. See Hansen, 733 N.W.2d at 698 (noting
“the prospect for successful joint physical care is reduced when there is a bitter
parental relationship and one party objects to the shared arrangement”). Notably,
both parties were able to speak positively about one another at trial. And, for ten
months preceding trial, the parties were able to maintain an arrangement that, at
least on paper, amounted to joint physical care. Trevor appeared to have
reconciled himself to the fact of divorce, adjusted his schedule to facilitate joint
physical care, and suggested ways to ease the children’s transition from home to
home such as having the exchanges at the school where Amber worked. In
sum, both parents made adjustments to accommodate a joint physical care
arrangement, despite their sometimes acrimonious relationship.
Amber next asserts the parents could not agree on day-to-day matters
affecting the children. Hansen, 733 N.W.2d at 699-700 (stating courts should
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examine whether the parents are in general agreement about their approach to
daily matters). On our de novo review, we find scant if any evidence of different
parenting styles or outlooks on issues such as discipline, education, or religious
practice. The parents’ disagreements concerning the children primarily related to
money matters, such as daycare expenses and the cost of specialized
counseling for the oldest child, as well as the cost of the children’s extracurricular
activities. These were issues that did not preclude joint physical care.
We turn to Amber’s assertion that Trevor denied her contact with the
children for a three-week period. The record supports her assertion, but Trevor
raised equally troubling accusations that, during the marriage, Amber took the
children and left the home without informing him of her whereabouts. While
Amber testified he could have surmised she was at her mother’s house, the fact
remains that both parents used poor judgment before the temporary order was
entered. After the order, they regularly exchanged the children without undue
conflict.
We are left with the imminent birth of another child. Sibling bonds,
including bonds with half-siblings, should be preserved. In re Marriage of Orte,
389 N.W.2d 373, 374 (Iowa 1986). Here, the children had yet to develop a bond
with the new child. Additionally, the joint physical care arrangement would allow
the children to have sustained contact with the child. See In re Marriage of
Riddle, 500 N.W.2d 718, 720 (Iowa Ct. App. 1993). For these reasons, we find
this consideration of little assistance in the joint physical care analysis.
In the end, we conclude the district court acted equitably in ordering joint
physical care based on Trevor’s positive relationship with the children and the
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vagaries of his work schedule. While Amber made a compelling case for
physical care to promote continuity and stability, her proposal for a traditional
primary-care schedule with every-other-weekend visitation effectively denied
Trevor any “weekend” time with the children. Like Amber, Trevor is a good and
caring parent whose access to the children did not deserve to be limited in this
fashion. The joint physical care arrangement allowed him to have the children on
his Wednesday-Thursday “weekends” in addition to other days of the week.
Accordingly, we affirm the district court’s decision to grant the parents joint
physical care.1
II. Economic Provisions
A. Unreimbursed Medical Expenses.
Amber contends the district court should not have held her responsible for
the first $250.00 of unreimbursed medical expenses for the children. We agree.
Rule 9.12(5) of the Iowa Child Support Guidelines states “parents shall
share all uncovered medical expenses in proportion to their respective net
incomes.” Iowa Ct. R. 9.12(5). We apply new child support guidelines to all
pending cases, including those pending on appeal. In re Marriage of Roberts,
545 N.W.2d 340, 343 n.2 (Iowa Ct. App. 1996).
We conclude all unreimbursed medical expenses for the children should
be assigned to the parties in proportion to their respective net incomes, which the
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In coming to this conclusion, we note the surface similarities to a recent opinion of this
court, In re Marriage of Musfeldt, No. 13-1563, 2014 WL 2885245 (Iowa Ct. App. June
25, 2014). However, we also note that in dissolution cases “[p]recedent is of little value
as our determination must depend on the facts of the particular case.” In re Marriage of
White, 537 N.W.2d 744, 746 (Iowa 1995) (citing In re Marriage of Sparks, 323 N.W.2d
264, 265 (Iowa Ct. App. 1982)). On review, we find the specific facts present in this
case support our divergent conclusions.
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court found was 65% to Trevor and 35% to Amber. We modify the district court’s
ruling on this issue.
B. Extracurricular Expenses
Amber asked for an order requiring the parties to contribute equally
towards the children’s miscellaneous expenses, such as extracurricular activities
and clothing. Contrary to Trevor’s assertion, we conclude Amber adequately
preserved the issue. Amber’s pretrial statement of proposed relief included a
request that “both parents shall continue to allow and support the children’s
participation in activities . . . . Each parent shall ensure the children’s attendance
at these activities during his or her parenting time.” Amber’s rule 1.904(2) motion
to amend and enlarge again alerted the district court to this issue and requested
specific relief, which the district court declined to grant. See In re Marriage of
Bolick, 539 N.W.2d 357, 361 (Iowa Ct. App. 1995) (discussing predecessor rule
179(b) motions and noting they are vehicles to enlarge or modify findings based
on evidence already in the record).
Turning to the merits, Amber correctly cites In re Marriage of McDermott,
827 N.W.2d 671, 685-86 (Iowa 2013), for the proposition that, where joint
physical care is ordered, the district court may require both parents to contribute
to the children’s extracurricular expenses “to make sure both spouses pay their
fair share.”
This case is indistinguishable from McDermott when it comes to the
children’s expenses for extracurricular activities. We modify the decree to
require each parent to pay one-half the extracurricular expenses.
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C. Dependent Tax Credits
At trial, Amber asked that each party be allowed to claim one child every
tax year, and alternate the third child between odd and even years. The district
court granted that request but permitted Trevor to claim the third child during the
2013 tax year, even though he had two dependent tax credits in 2012.
On appeal, Amber asks us to modify the district court’s order and grant
her two consecutive years of two dependent tax credits to do equity between the
parties.
Iowa district courts have the authority to award dependent child tax credits
to the non-custodial parent to achieve an equitable resolution in a dissolution. In
re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996). Here, there is no
primary caretaker and thus no presumption.
We conclude the district court’s allocation of tax dependency exemptions
was equitable. From the trial date forward, the court afforded each parent equal
treatment. While the court elected to begin the allocation of two exemptions with
Trevor despite the fact that he received two in 2012, the court’s decision makes
sense, given his higher earnings. We affirm this aspect of the court’s decree.
D. Property Distribution
Amber contends the district court (1) did not properly value the parties’
home and a vehicle awarded to Trevor, (2) failed to consider the credit card debt
of the parties, and (3) and should have divided Trevor’s military pension.
1. Valuation of Property
The district court valued the home at $152,000 based on the testimony of
a real estate agent that this was the least the parties would take if it were sold.
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At trial, Amber testified she did not want to sell the home as she had indicated in
her pretrial stipulation but wished to remain in it and have it valued at its
appraised value of $145,000.
“Ordinarily, a trial court’s valuation will not be disturbed when it is within
the range of permissible evidence.” Hansen, 733 N.W.2d at 703. We conclude
the court’s valuation of the home was within the permissible range of evidence.
As for Trevor’s vehicle, Amber contends the court’s valuation of $23,071
was lower than the stipulated value of $23,621. Because the higher value is
supported by a financial affidavit filed by Trevor before trial, we conclude this
valuation also was within the permissible range of evidence, and affirm the
district court’s valuation.
2. Credit Card Debt
The district court allocated $2960.62 of credit card debt to Amber. Amber
contends neither party asked the court to disregard the credit card debt in
calculating the amount of the property equalization payment. To the contrary, the
parties’ statement of proposed relief stated both parties would be responsible for
their own credit cards and other miscellaneous debts. Additionally, Iowa courts
have held that post-separation liabilities are the responsibility of the party that
incurred the indebtedness. In re Marriage of Smith, 351 N.W.2d 541, 543 (Iowa
Ct. App. 1984). Amber concedes much if not all the credit card debt was
incurred after she separated from Trevor. For these reasons, we affirm the
district court’s treatment of the credit card debt.
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3. Military Pension
Amber finally contends the district court should have offset Trevor’s
unvested military pension against her property equalization payment.
Military pensions, like private pensions, are considered marital property.
In re Marriage of Howell, 434 N.W.2d 629, 632 (Iowa 1989). The proper method
for calculating the division of this property is to award the non-serving spouse
one-half the pension’s value at the time of dissolution, multiplied by a ratio based
on the years of marriage divided by the years served. Id. at 633. This formula
applies equally to unvested pensions. In re Marriage of Fuchser, 477 N.W.2d
864, 865-66 (Iowa Ct. App. 1991); In re Marriage of Imhoff, 461 N.W.2d 343,
344-45 (Iowa Ct. App. 1990).
The district court concluded that because Trevor’s pension account had
not yet vested and would not fully vest until Trevor attains the age of sixty years
old, there was no divisible value for purposes of the property distribution. We
believe Howell dictates a contrary result. We modify that portion of the decree
declining to value and divide the military pension. Because the record contains
no evidence of the current value of the pension, we remand for further
proceedings to value and divide the military pension. We otherwise find the
district court’s property distribution equitable and affirm the remaining property
distribution provisions.
III. Attorney Fees
Amber contends the district court should have ordered Trevor to pay her
trial attorney fees because Trevor’s income was essentially double hers.
Decisions about trial attorney fees rest within the district court’s discretion and
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will not be overturned absent an abuse of discretion. In re Marriage of
Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The district court reasonably
could have concluded Amber had the ability to pay her own fees notwithstanding
the disparity in the parties’ incomes.
Amber also seeks appellate attorney fees. An award rests within our
discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).
Because Amber prevailed on several issues, we order Trevor to pay $2000
toward her appellate attorney fee obligation.
IV. Disposition
We affirm the district court’s decision to grant the parents joint physical
care of the children. We also affirm the district court’s property valuations. We
modify the provision on unreimbursed medical expenses to provide that all those
expenses shall be proportionally divided between the parents. We modify the
decree to provide for equal sharing of expenses for extracurricular activities and
clothing. We affirm all portions of the property distribution except the decision
not to divide Trevor’s military pension. We modify the decree to provide for
valuation and division of Trevor’s military pension pursuant to the Howell formula,
and we remand for that determination.
AFFIRMED AS MODIFIED AND REMANDED.