In Re the Marriage of Matthew Morris and Allison Morris Upon the Petition of Matthew Morris, and Concerning Allison Morris, N/K/A Allison Walsh ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1884
Filed October 29, 2014
IN RE THE MARRIAGE OF MATTHEW MORRIS
AND ALLISON MORRIS
Upon the Petition of
MATTHEW MORRIS,
Petitioner-Appellee,
And Concerning
ALLISON MORRIS, n/k/a ALLISON WALSH,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County, John G. Linn,
Judge.
Allison Morris, now known as Allison Walsh, appeals the physical care,
child support, and property distribution provisions of the decree dissolving her
marriage to Matthew Morris. AFFIRMED.
Stephen T. Fieweger of Katz, Huntoon & Fieweger, P.C., Moline, Illinois,
for appellant.
Daniel L. Bray, Lori L. Klockau, Chad A. Kepros, and David M. Cox of
Bray & Klockau, P.L.C. , Iowa City, for appellee.
Heard by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.
Allison Morris, now known as Allison Walsh, appeals the physical care,
child support, and property distribution provisions of the decree dissolving her
marriage to Matthew Morris. She first contends the district court erred in placing
the parties’ two children in Matthew’s physical care. Allison also maintains the
court erred in denying her request to reopen the record to present additional
evidence. She challenges the court’s valuation of the marital residence, its
failure to require Matthew to refinance the debt on the house, and its calculation
of her child support obligation. Upon our de novo review, we affirm.
I. Background Facts and Proceedings.
Matthew and Allison were married in August 2001. Both were twenty-six
years old at that time. It was the first marriage for both parties. They had two
children, a son, J.M., born in January 2004, and another son, H.M., born in
September 2005.
Matthew is in good health and has no physical limitations. Matthew grew
up in Fort Madison. He attended college after graduating from high school;
worked at a bank in Florida in 1997; and moved to Cincinnati, Ohio, where he
worked for two years. Matthew later lived in Coralville, Iowa, and worked for
Brenton Bank and then Wells Fargo as a mortgage agent. After the parties
married in 2001, they moved to Des Moines while Allison worked on her
certification to be a physician’s assistant (PA). Matthew continued to work as a
mortgage agent for Wells Fargo. The parties moved to Fort Madison in 2002
where Matthew began his employment with the Fort Madison Bank & Trust.
Matthew was promoted to bank president in 2006. In 2011, Matthew’s gross
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annual income was $179,777, about $150,000 of which is salary, the remainder
being benefits and a bonus. He has an employer-sponsored health benefit plan
available; the monthly cost to cover the children for medical and dental insurance
is $599.
Allison finished her undergraduate degree requirements in southeast Iowa
and earned a Bachelor of Science in 1998. In 2003, Allison became a PA. In
August 2003, she went to work as a PA at Fort Madison Physicians & Surgeons
and was employed there until October 2004. She then worked at Infinity Medical
Clinic in Fort Madison until December 2007, when the clinic closed. Allison
returned to Fort Madison Physicians & Surgeons in January 2008. However,
Allison resigned in March 2010. At that time, she was covered by a two-year,
sixty-mile-radius, non-compete clause that prohibited her from working as a PA in
the Fort Madison area. From May 2010 to January of 2011, Allison worked in
sales for Tri-Medical Solution.
In 2010, Allison began experiencing severe emotional problems.1 In
November 2010, Allison began outpatient counseling with Dr. Janeta Tansey.
Her condition became severe enough that for ten days during January 2011 she
entered an inpatient program at Mercy Hospital in Iowa City. Allison was
diagnosed with anorexia nervosa and post-traumatic stress disorder (PTSD).
After leaving Mercy, Allison’s condition worsened, and she began inpatient
treatment at the University of Iowa Hospitals from February 2 through 21, 2011.
She left that program against medical advice. Her physical health worsened in
1
Allison had some history of emotional issues, including an undiagnosed eating disorder
and a suicide attempt during her teenage years and an episode of suicidal ideation when
in college.
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late February. Allison entered a long-term inpatient program at a Denver,
Colorado, hospital in March 2011. Allison stated she completed the program;
Matthew felt she had not because she had not filled out her wellness plan prior to
discharge. She returned home to Fort Madison in mid-May 2011.
Still covered by the non-compete agreement, Allison began working in
September 2011 at the University of Iowa Community Medical Services office in
Coralville, Iowa. She worked approximately three ten-hour days per week and
was paid forty dollars per hour. Allison would spend one or two nights per week
in Coralville, staying at a motel or with relatives.
Before her hospitalizations, Matthew and Allison were both actively
involved in the children’s care. Matthew became the boys’ sole caregiver for
several months in early 2011. Upon Allison’s return, both parents again provided
care for the children, although Matthew was necessarily the primary caregiver
when Allison was at work in Coralville.
Matthew filed a dissolution petition in March 2012. Following several
motions and orders related to the temporary care and support of the children
(including Matthew’s request for a temporary injunction to prohibit Allison from
moving the boys from Fort Madison and enrolling them in school in Iowa City),2
the court sua sponte appointed a guardian ad litem (GAL) for the children. After
an extensive investigation, the GAL recommended the children remain enrolled
in their Fort Madison school.
2
After the parties separated, they alternated living in the marital residence for one-week
periods caring for the children. In July 2012, Allison’s parents purchased a residence for
Allison in the Coralville area.
5
On August 9, 2012, the district court entered a ruling granting Matthew’s
application for a temporary injunction prohibiting Allison from registering the
children for school at an elementary school in Coralville. To provide a “modicum
of stability” for the children, the court enjoined the parties from removing the
children from their current school system until further order of the court.
On September 5, 2012, the GAL filed a supplemental report in which she
noted the children were “very bonded to both of their parents and are comfortable
in both of their homes. Both parties love these boys very much, but are having a
difficult time shielding the children from the divorce process as emotions are
running on overdrive during this time.” The GAL recommended the court order
temporary physical care of the children with Matthew:
Taking all things into consideration, I believe the most
important factor to look at is the continuity and routine of the boys.
It is a fact that the boys like their home in Fort Madison and the
boys are comfortable there. They have many friends and a huge
support system in the Fort Madison area to include both Matt and
Allison’s families. The boys have attended and been involved with
the Holy Trinity School system since they were [two] years old.
Fort Madison is where they have grown up so far. Many of the
people who are the closest with the boys all voiced concerns they
will not be happy on a long term basis in Iowa City away from their
friends and family.
On September 10, 2012, the court entered an order on temporary matters.
The court noted the parties had initially shared care of the children, but that
arrangement was no longer possible. The court concluded:
Children the ages of [J.M.] and [H.M.] suffer a substantial amount of
disruption in their lives when their family unit is dissolved when their
parents separate. Such disruption and substantial change typically
has a negative impact on children. In this case the parties report
that both [children] are suffering emotionally because of the
changes in their family structure. Consequently, the court should
do nothing in its order on temporary matters that will exacerbate the
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stresses the children are enduring at this time. The court
concludes that leaving the children in the home where they have
lived their entire lives and in the community where they have lived
their entire lives is the least disruptive thing the court can do to
them at this stage of the proceeding.
The children were placed in Matthew’s physical care, and Allison was granted
“reasonable and liberal visitation.” Allison was ordered to pay temporary child
support in the amount of $145.57 per week.
On January 5, 2013, the GAL filed a report with the court, which was
admitted at trial. Though extensive and detailed, the report can be summed up,
Taking all the drama and noise out of the equation, both parents
are perfectly capable of caring for these boys. Maintaining their
routine and way of life is what I believe we must look to.
....
. . . [T]hese boys need consistency and routine and I believe
they are best able to achieve that during the school year in Fort
Madison. I further believe that because the children are so bonded
to both of their parents, that they should be spending a significant
amount of time with both parents.
The GAL thus recommended physical care remain in Fort Madison during the
school year with Matthew and that the boys “spend the summer with Allison.”
The GAL recommended the parent not providing physical care receive liberal
visitation to maximize the children’s time with each parent. The GAL further
recommended family counseling for the “entire family” so “both parties can do a
better job of putting the boys’ interests ahead of their own.”
A lengthy dissolution trial was held on January 7, 8, and 25; February 19;
May 17; and June 6, 2013. An order establishing summer vacation was filed on
June 11, 2013. Allison’s motion to reopen the record filed on June 27 was
denied.
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On October 1, 2013, the court entered a dissolution decree placing the
children in Matthew’s physical care. The court stated, “The children’s placement
in the Fort Madison area provides them the most family support and this
placement will be the least disruptive to their mental and emotional growth.
Placing the children with Matthew will most likely bring them to healthy physical,
mental, and social maturity.”
The district court found Allison earned $62,400 working three, ten-hour
shifts per week. The court concluded Allison should be attributed an earning
capacity of $70,000 and ordered Allison to pay $222 per week in child support.
The court awarded Matthew the marital residence, which was encumbered
by a first mortgage in the amount of $409,420 and a second mortgage in the
amount of $116,192. Though noting the replacement cost of the house
exceeded $690,000, the court observed the real estate appraisals ranged from
$402,000 to $665,000. The court assigned a value of $520,000 to the residence.
The court assigned the first and second mortgage debt to Matthew and ordered
Allison be “saved harmless” on the debt. Under the decree, Matthew was to
receive assets with a net value of $174,336 and Allison was to receive assets
with a net value of $43,953. The court ordered Matthew to transfer $65,000 from
his 401(k) account to Allison by Qualified Domestic Relations Order (QDRO).
On October 9, Allison filed a motion for new trial in which she asked the
court to take additional evidence concerning post-trial events. She also asked
the court to amend the decree to require Matthew to refinance the first and
second mortgages on the marital residence to remove her name. The court
denied the post-trial motions, and Allison appeals.
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Allison argues she should have been granted physical care of the children.
She further contends the court erred in failing to reopen the record to allow her to
present further evidence, asserting the information had to do with Matthew’s
moral character. Allison challenges the court’s valuation of the marital residence.
She contends the court erred in failing to require Matthew to refinance the
mortgages to remove her name and in calculating her child support based upon
imputed income instead of her actual income.
II. Scope and Standard of Review.
We review dissolution cases de novo. In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). We give weight to the district court’s findings,
especially regarding the credibility of witnesses, but are not bound by them. Iowa
R. App. P. 6.904(3)(g). “Precedent 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).
We review the trial court’s decision whether to reopen the record for an
abuse of discretion. Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621,
634 (Iowa 1996).
III. Discussion.
A. Physical Care. In any custody determination, the primary
consideration is the best interests of the children. See Iowa Code § 598.41(a)
(2011);3 In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
3
Section 598.41(a) provides:
The court may provide for joint custody of the child by the parties.
The court, insofar as is reasonable and in the best interest of the child,
shall order the custody award, including liberal visitation rights where
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Physical care issues are not to be resolved based upon perceived
fairness to the spouses, but primarily upon what is best for the
child. The objective of a physical care determination is to place the
children in the environment most likely to bring them to health, both
physically and mentally, and to social maturity.
Hansen, 733 N.W.2d at 695. We consider numerous factors, including but not
limited to the suitability of parents, whether the psychological and emotional
needs and development of the children will suffer from lack of contact with and
attention from both parents, the quality of parental communication, the previous
pattern of caregiving by the parents, and each parent’s support of the other. See
id.In assessing a custody order, we give considerable weight to the judgment
of the district court, which had the benefit of hearing and observing the parties
firsthand. In re Marriage of Ford, 563 N.W.2d 629, 630-31 (Iowa 1997). We
have carefully reviewed all the evidence and the district court’s rulings. The
district court noted each party’s positive parental qualities:
The children are closely bonded to Matthew and enjoy the stability
and continuity of being able to reside in the marital residence, the
home they have lived in since it was reconstructed after the fire. In
Matthew’s physical care, the children can continue to attend Holy
Trinity School. The children enjoy Holy Trinity and have many
friends there. Matthew holds a responsible position with a local
bank, earns a significant income, and can provide for the material
needs of the children. Matthew is even-tempered and patient with
the children. Moreover, he can provide for their emotional needs.
Matthew perceived a need for the children to undergo counseling
due to the high level of conflict between the parents. Matthew
appropriate, which will assure the child the opportunity for the maximum
continuing physical and emotional contact with both parents after the
parents have separated or dissolved the marriage, and which will
encourage parents to share the rights and responsibilities of raising the
child unless direct physical harm or significant emotional harm to the
child, other children, or a parent is likely to result from such contact with
one parent.
(Emphasis added.)
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encourages the children to be involved in outside activities such as
baseball, football and golf. Matthew works closely with school
officials and attends school functions for the children. When
Matthew is at work or a meeting, and cannot take care of the
children, he has access to responsible individuals for child care.
Often, Matthew’s mother will provide child care to the children. She
lives nearby and has a close, loving relationship with the children.
Allison’s parents (the children’s maternal grandparents) and the
children’s cousins all live in Burlington, which is approximately
[twenty] miles away. Matthew encourages and promotes the
relationship between the children and their other relatives. Matthew
has attended to all of the children’s medical and dental needs. He
has scheduled appointments and made arrangements for this care.
....
. . . Allison enjoys a close and loving relationship with the
children. Even though she has not had primary physical care the
past year, she has maintained a close relationship with the children,
exercises all of her visitation, and speaks to the children by
telephone daily. Allison lives in a comfortable residence in a good
neighborhood in Coralville. The children’s educational needs would
be well met by the school they would attend if they resided in
Coralville. Allison has made plans for appropriate child care if she
were awarded physical care. Allison holds a responsible position
as a physician’s assistant and earns an adequate income, so she
could provide for the children’s material needs. Allison has paid all
court-ordered child support. Allison enjoys outdoor activities, as
does [J.M.] She takes the children on walks in the woods, rides
with them on ATVs, and takes [J.M.] hunting. When her schedule
permits, Allison takes the children to the home of her parents in
Burlington. Allison’s parents enjoy a close, loving relationship with
the children. Allison has tried hard to stay in touch with the
children’s teachers, school officials, and she has tried to attend
activities the children are involved with in school. Allison has
participated in decisions made for the children’s medical and dental
care.
The trial court also acknowledged both parents’ extensive criticisms of the other,
which we find no reason to repeat here.
The trial court concluded, and we agree, “The children have enjoyed a
great deal of stability in Matthew’s physical care.” The trial court wrote:
The Court does not doubt the sincerity of Allison’s desire that
the children live with her in Coralville, but in determining the award
of physical care, it is the best interests of the children which must
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guide the Court, not the interest of the parent seeking physical
care. Uprooting these young children from their familiar
surroundings in Fort Madison would be difficult, unsettling, and
traumatic. The children have already had to endure the separation
of their parents. It would be cruel to require them to leave the
home in which they have resided all of their lives, their
neighborhood, school, friends, relatives, and community.
Moreover, Matthew has been the children’s past joint caretaker,
sometimes their sole caretaker, and for at least two of the previous
three years, their primary caretaker. The children should not be
forced to be separated from him. Allison is a fit parent, but she has
a history of emotional problems. She becomes frustrated with the
children, sometimes yells at them, and has used inappropriate
discipline. She is able to take care of the children for short periods
of time, but simply does not have the emotional endurance to act as
the children’s primary caretaker over the long haul. . . .
The Court concludes placement of physical care of the
children with Matthew is in their best interests because Matthew
can minister more effectively to their present and future needs. The
children’s placement with Matthew in the Fort Madison area
provides them the most family support and this placement will be
the least disruptive to their mental and emotional growth. Placing
the children with Matthew will most likely bring them to healthy
physical, mental, and social maturity. The Court concludes
Matthew shall be awarded physical care of [the children]. Allison
shall be awarded visitation.
On appeal, Allison expends considerable time and emotional energy
focusing on several points she feels should tip the scales in favor of her having
physical care of the children. First, she argues her move to Coralville should not
be held against her because she did not “choose” to move away, but rather was
required to go where work was available (and not prohibited by the non-compete
clause) when she was “kicked out of the house.” She notes she only works three
days per week so has more time to be available to the children. She next points
out several instances of Matthew’s conduct she argues establish his bad moral
character. She also maintains the trial court overlooked or ignored “virtually all of
Matthew’s egregious acts and deficiencies.”
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Upon our de novo review, and given the objective of a physical care
determination—to place the children in the environment most likely to bring them
to healthy physical, mental, and social maturity—we believe the stability offered
by Matthew, coupled with the children’s close relationships with the extended
family in Fort Madison, tip the scales in favor of placing the children in Matthew’s
physical care. The district court also gave additional sound and ample reasons
for the physical care award, which are supported by the record. We do not
criticize Allison for her move to Iowa City for employment purposes, but the non-
compete clause terminated shortly after the dissolution action was filed.
Notwithstanding, she chose to stay in Iowa City even though the children appear
to be flourishing and grounded in Fort Madison.
Both parents obviously love their children and are capable parents, but
like any parent they have their strengths and weaknesses. Both parties have
exhibited less than perfect conduct during these extended dissolution
proceedings. The children will benefit if the parties can get beyond their personal
grievances with one another, protect their children from their own animosity
toward the other, and focus on their children’s needs and healthy development.
B. Reopening Record. The sixth day of trial was held on June 6, 2013.
Matthew was questioned about his relationship with his girlfriend on that date.
On June 27, Allison filed a motion to reopen the evidence on the ground Matthew
was now having his girlfriend “regularly stay overnight” while the children were
present in his residence. The trial court denied the motion, finding it had “ample
evidence from which to make a decision on the contested issues presented.”
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The trial court has broad discretion in deciding whether to reopen a case
for the reception of additional evidence. See Bangs v. Maple Hill, Ltd., 585
N.W.2d 262, 267 (Iowa 1998) (noting “a trial court in its discretion may allow
reopening of the case at any stage of the trial”); Sun Valley Iowa Lakes Ass’n,
551 N.W.2d at 634. We acknowledge the district court did not have the benefit of
trial testimony from Matthew’s girlfriend, and her absence is somewhat
disconcerting in light of her presence in Matthew’s life. But we note the GAL’s
concern did not relate to the girlfriend’s character or her relationship with the
children. Notwithstanding, given the extended nature of these proceedings and
the extensive record already before the trial court, we find no abuse of discretion
here.
C. Property Valuation. Allison argues the trial court erred in valuing the
marital residence. This residence was built after the parties’ house burned in
2007 and was a total loss. Both parties testified the other overspent in rebuilding
and furnishing the home—as the trial court found, the replacement case for the
current home “probably exceeds $690,000.” One real estate appraiser, Tammy
Luckenbill, provided a valuation of the house at $595,000. However, she testified
there were no comparable sales to use to establish a market value because the
highest sale price for a house in the Fort Madison area in the “last few years”
was $395,000. Another appraiser, Margaret Coleman, valued the house at
$402,000. Other evidence established Matthew had refinanced the house in
August 2011 based upon a valuation of $683,400.
As was stated in Hansen, 733 N.W.2d at 703, “Ordinarily, a trial court’s
valuation will not be disturbed when it is within the range of permissible
14
evidence.” Upon our de novo review of the various valuations and supporting
testimony, we conclude the trial court’s valuation is within the range of
permissible evidence and should not be disturbed. In her appellate brief, Allison
“concedes, as her own appraiser recognized, that the current housing market in
the Fort Madison area may not reflect a valuation that matches the cost of this
home.”
D. Hold Harmless. The decree awarded Matthew the martial residence
and ordered him to pay the debts thereon (the first mortgage in the amount of
$409,420; the second mortgage in the amount of $116,192). The decree states,
“Allison will be saved harmless.”
Matthew twice testified he would hold Allison harmless, though he also
testified he was not sure if he would be able to refinance the property. On the
final day of trial, the following occurred:
[ATTORNEY BRAY] Q. What is the current mortgage on the
house? [MATTHEW] A. Current right now combined, about 524, I
think.
Q. Should there be a refinancing ordered by the Court, are
you capable of doing that financing at this time? A. I’m not sure
yet. It—Because of the market and the sales, I’m not sure if I’ll be
able to get it refinanced.
Q. If you’re unable to obtain refinancing, are you willing to
hold Allison harmless from the debt on the house? A. Yes.
Allison contends the trial court erred in not requiring Matthew to refinance
the house to remove her name. We find no reason to modify the decree. Allison
presented no evidence that her credit standing or ability to obtain financing would
be affected other than her own opinion.
In light of the debt owed against the home, the trial court could have
determined that requiring refinancing was not reasonable under the housing
15
market conditions and that Allison was adequately protected by the decree’s
“hold harmless” provision. Cf. In re Marriage of Ginsberg, 750 N.W.2d 520, 522
(Iowa 2008) (finding former spouse was permitted to seek enforcement of a
dissolution decree’s “hold harmless” provision in a later proceeding).
E. Child Support. Allison next argues the court erred in calculating her
child support obligation. She maintains the trial court did not make the necessary
finding to base her child support obligation on earning capacity rather than actual
earnings.
“Before applying the guidelines there needs to be a determination of the
net monthly income of the custodial and noncustodial parent at the time of the
hearing.” In re Marriage of Kupferschmidt, 705 N.W.2d 327, 332 (Iowa Ct. App.
2005). Iowa Court Rule 9.11 provides:
The court shall not vary from the amount of child support
which would result from application of the guidelines without a
written finding that the guidelines would be unjust or inappropriate
as determined under the following criteria:
(1) Substantial injustice would result to the payor, payee, or
child(ren).
(2) Adjustments are necessary to provide for the needs of
the child(ren) and to do justice between the parties, payor, or payee
under the special circumstances of the case. . . .
Pursuant to Iowa Court Rule 9.11(4), the court “may impute income in
appropriate cases.” That paragraph continues:
If the court finds that a parent is voluntarily unemployed or
underemployed without just cause, child support may be calculated
based on a determination of earning capacity. A determination of
earning capacity may be made by determining employment
potential and probable earnings level based on work history,
occupational qualifications, prevailing job opportunities, earning
levels in the community, and other relevant factors. The court shall
not use earning capacity rather than actual earnings or otherwise
impute income unless a written determination is made that, if actual
16
earnings were used, substantial injustice would occur or
adjustments would be necessary to provide for the needs of the
child(ren) or to do justice between the parties.
Iowa Ct. R. 9.11(4) (emphasis added). The required findings highlighted are
separated by the term “or”—the three alternative findings are used in the
disjunctive. See Kelly v. Sinclair Oil Corp., 476 N.W.2d 341, 346 (Iowa 1991)
(“[W]hen the word ‘or’ is used in a statute, it is presumed to be disjunctive unless
a contrary intent appears.”), abrogated on other grounds by Thompson v.
Kaczinski, 774 N.W.2d 829, 836 (Iowa 2009).
Here, Allison testified she could make $83,200 per year if she worked full-
time in her present position. However, she maintained a thirty-hour-work week,
which allowed her flexibility and more time to be available for her children. When
asked if she could be a full-time employee, Allison testified, “Yes and no.” “Yes, I
could. But, no, I need to make sure that I have instilled Wednesdays off for
visitations with my children and that I—only one weekend day a month.” She
acknowledged she had worked extra shifts to cover when someone else was ill.
The district court noted Allison’s gross annual income working three ten-
hour days per week was $62,400. The court also found, “Allison’s tax return
showed gross annual income of $65,000 for 2012. Based on a recent check stub
for which Allison worked 67.52 hours during a two-week pay period, Allison
would earn, on an annualized basis, $70,220 per year.” The court concluded,
Allison should be attributed earning capacity of $70,000 per year.
This conclusion is justified under the special facts of this case to
avoid substantial injustice to Allison [sic], and such adjustment is
necessary to do justice between the parties and the children. This
figure takes into account Allison’s educational background, her
emotional and physical condition, and her earning history over the
past five years. See Iowa Child Support Guideline Rule 9.11(1)
17
and (2). See also In re Marriage of Salmon, 519 N.W.2d 94, 97
(Iowa Ct. App. 1994). Therefore, for the purpose of calculating
Allison’s child support obligation, Matthew earns gross annual
income of $179,777 and Allison earns gross annual income, based
on earning capacity, of $70,000.
The district court found that it used Allison’s earning capacity because it “is
necessary to do justice between the parties.” Although we could conclude the
court’s finding related to Allison’s earning capacity is supported by the record and
its written finding is sufficient to vary from the child support guidelines under
rule 9.11(4), there was also evidentiary support to conclude her current income is
$70,000. The court found that based upon Allison’s latest pay stub, and by
extrapolating that sum for the whole year, Allison earned in excess of $70,000
gross income. Thus, even disregarding the district court’s usage of earning
capacity, we conclude the child support was properly calculated based upon
Allison having gross annual income of $70,000.
Upon our de novo review, we affirm the dissolution decree in its entirety.
IV. Appellate Attorney Fees.
Matthew seeks an award of appellate attorney fees. Appellate attorney
fees are not a matter of right, but rest in the court’s discretion. In re Marriage of
Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs of the party
seeking the award, the ability of the other party to pay, and the relative merits of
the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). In light of
Matthew’s significantly greater income, we determine each party shall pay his or
her own attorney fees.
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V. Conclusion.
We affirm the placement of the parties’ two children in Matthew’s physical
care. Given the extended nature of these proceedings and the extensive record
already before the trial court, we find no abuse of discretion here in the court’s
denial of Allison’s request to reopen the record. The court’s valuation of the
marital residence is within the range of permissible evidence and will not be
disturbed. Nor do we require Matthew to refinance the debt on the house—in
light of the debt owed against the home, the trial court could have determined
that requiring refinancing was not reasonable under the housing market
conditions and that Allison was adequately protected by the decree’s “hold
harmless” provision. Finally, we conclude the child support was properly
calculated based upon Allison having gross annual income of $70,000. We
award no appellate attorney fees.
Costs on appeal are assessed to Allison.
AFFIRMED.