In re the Marriage of Milne ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0228
Filed September 2, 2020
IN RE THE MARRIAGE OF JEFF MILNE
AND ALYSSA MILNE
Upon the Petition of
JEFF MILNE,
Petitioner-Appellant/Cross-Appellee,
And Concerning
ALYSSA MILNE,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mary E. Howes,
Judge.
An ex-husband appeals custody, spousal-support, child-support, and
economic provisions in a divorce decree; the ex-wife cross appeals on the custody,
property, and child-support provisions, and seeks to vacate the decree.
AFFIRMED AS MODIFIED AND REMANDED.
Robert S. Gallagher and Peter G. Gierut of Gallagher, Millage & Gallagher,
P.L.C., Bettendorf, for appellant.
Maria K. Pauly of Maria K. Pauly Law Firm, P.C., Davenport, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.
Jeff and Alyssa Milne divorced after a fifteen-year marriage. Jeff appeals
the district court’s grant of joint legal custody and joint physical care of their two
children. He also challenges the spousal-support, child-support, and economic
aspects of the decree. Alyssa cross appeals on the issues of joint physical care,
property division, and child support. She also contends the decree is null and void
because the district court judge retired the day before filing it. And Alyssa asks for
appellate attorney fees.
As a first step, we hold the district court had authority to issue the decree.
Next, we modify the decree to place sole legal custody and physical care with Jeff.
Based on this modification, we remand for the district court to issue a new visitation
schedule and recalculate child support. As for spousal support, we modify the
decree to the amount and duration Alyssa requested at trial. We also affirm the
economic provisions of the decree. Finally, we decline to award appellate attorney
fees to Alyssa.
I. Facts and Prior Proceedings
Jeff and Alyssa married in April 2004 in El Paso, Texas. Alyssa was working
for the school district as a speech therapist. Jeff serves in the Army. So the
couple’s moves followed his military career. They lived in Germany from 2005 until
2008. They then returned to El Paso, where their son, C.M. was born in December
2008. Their daughter, A.M., was born in January 2011. Later that year, Jeff
deployed to Iraq for four months. He stayed in touch with the family through daily
video chats. In 2012, they moved to Kansas. And one year later, the family moved
to Davenport. The Army transferred Jeff to the Rock Island Arsenal where he
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works in the sustainment command, which oversees logistics for active duty U.S.
troops around the world.
On the home front, Alyssa took some part-time jobs as a photographer after
the children were born but devoted most of her time to child rearing. In 2013, five-
year-old C.M. experienced intestinal trouble and received a diagnosis of Crohn’s
disease. After further testing, that diagnosis changed to ulcerative colitis. About
this same time, Jeff perceived that Alyssa began to impose more restrictions on
his participation in hands-on parenting activities. For example, she excluded Jeff
from meal preparation, bathing of the children, and laundry duty—based on her
concern about the children’s exposure to chemicals in commercial household
products. Alyssa also nursed both children until they were nearly five years old.
In 2016, Jeff deployed to Amman, Jordan, for six months. When he
returned, he learned that Alyssa had “established some diets” for the children,
particularly C.M., that were not recommended by their doctors. According to Jeff,
Alyssa was feeding C.M. banana pancakes “three meals a day, plus snacks.”
When asked about their son’s diet, Alyssa insisted C.M. “always had choices” but
he “loved those” pancakes. Plus, Alyssa restricted C.M.’s gluten and dairy intake,
though testing showed he had no allergies to those products. Their son’s
ulcerative colitis and low weight continued to be a challenge for the parents. At
the time of the trial, the parents disagreed whether to follow a doctor’s
recommendation that C.M. have a colectomy or seek a second opinion. The
parents had no health concerns for A.M.
Jeff and Alyssa separated in 2017 and Jeff filed a petition to dissolve their
marriage. Their separation was contentious. Each party filed a petition for relief
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from domestic abuse in 2017; they later agreed to dismiss the emergency orders
of protection. Alyssa again sought a temporary restraining order against Jeff in
February 2019, requesting separate parent-teacher conferences. And as the
district court found, both parties “inappropriately involved the police” in their
disputes over the children on several occasions.
Another key point of disagreement emerged while the parties awaited the
dissolution. In November 2017, Alyssa filed an objection to having the children
immunized, asserting a religious exemption. Jeff countered that Alyssa’s
objections were due to “illogical fears” and not beliefs grounded in her religion.
The court ordered that Jeff be allowed to have the children vaccinated as
recommended by their doctors. In addition to her anti-vaccination stance, Alyssa
expressed to Jeff what he believed were irrational concerns about the children’s
exposure to common objects such as dryer sheets, garden hoses, canned foods,
cake sprinkles, and radiation from cell phones. Jeff also testified that the children’s
counselor spoke to Alyssa about her practice of having the children, who were ten
and eight years old, continue to sleep in the same bed with her.
On top of those conflicts, the parents had different views on where the
children should attend school. Both A.M. and C.M. attended the Quad City
Montessori School. The unaccredited school had an attendance of less than
twenty children. Jeff worried about C.M.’s social and academic development
because he was the only child in the fourth grade there. Alyssa believed the
children were thriving in their current setting and the Montessori school was “very
understanding of [C.M.] and his medical needs.”
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At the time of the divorce trial in 2019, Jeff was forty-six years old. Alyssa
was forty-two years old. Jeff earned about $150,000 per year, while Alyssa
anticipated earning just under $80,000 per year.1 The parties owned a home in
Davenport valued between $258,000 and $276,000 with a mortgage of about
$175,000.
Another asset was Jeff’s collection of Lego blocks.2 Jeff is a Lego
aficionado. He attends Lego conferences and volunteers at the children’s
Montessori school by teaching a STEM class involving Lego construction. After
consulting the president of the Des Moines Lego user group and online databases,
Jeff valued his Lego collection at $8000 to $10,000. By contrast, Alyssa valued
the collection at $45,000. Alyssa also pointed to Jeff’s post-separation Lego
purchases, totaling more than $18,000, as an example of his dissipation of assets.
In the January 8, 2020 decree, the court awarded the parents joint legal
custody. But the court added two exceptions, designating Jeff as “the legal sole
decider” on medical and educational issues. The court then awarded the parties
joint physical care with the children alternating each week between their parents’
homes.
On the property division, the court awarded the marital home to Alyssa and
directed that she have it refinanced. The court also found a 2017 bequest of
$61,000 from Alyssa’s aunt was “hers alone to inherit and keep.” The court valued
1 Alyssa testified her 2018 income was about $30,000, but she filed a financial
affidavit for child support purposes in 2019 stating her gross monthly income from
three part-time jobs was $6660.81 (for an annual gross income of $79,929).
2 Lego is a toy company that manufactures interlocking studded blocks and
minifigures. See LEGO A/S v. Best-Lock Constr. Toys, Inc., 404 F. Supp. 3d 583,
590 (D. Conn. 2019).
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Jeff’s Lego collection at $25,000. The court split certificates of deposit and marital
debts, other than the home mortgage, between the parties. Likewise, the court
ordered that pensions and deferred compensation annuities be divided using the
Benson formula.3 As for monthly stipends, the district court ordered Jeff to pay
child support of $482.88 per month for both children and spousal support of $1000
per month for twenty-four months.
About two weeks later, Alyssa moved to vacate the decree and sought a
new trial. The issue was the decretal judge’s retirement date. The motion alleged
“the honorable Mary Howes’ term as judge concluded at midnight on January 7,
2020.” Alyssa argued the decree was “null and void” because the judge lacked
authority to issue it. The district court denied the motion, citing an order from the
acting chief justice of the supreme court assigning Judge Howes to temporary
judicial duties past her retirement date.
Jeff appeals and Alyssa cross appeals.
II. Scope and Standards of Review
We review dissolution appeals de novo. See In re Marriage of Hansen, 733
N.W.2d 683, 690 (Iowa 2007). We give weight to the decree’s factual findings. Id.When it comes to the credibility of witnesses, “[t]here is good reason for us to pay
very close attention to the trial court’s assessment.” In re Marriage of Vrban, 359
N.W.2d 420, 423 (Iowa 1984) (noting appellate courts lack impressions created by
3See In re Marriage of Benson, 545 N.W.2d 252, 256 (Iowa 1996) (dividing portion
of defined benefit accrued during marriage by total years of benefits accrued at
maturity). In ruling on the parties’ motions to amend, the court ordered Jeff’s
military pensions be divided “in accordance with the years of marriage” using a
court order acceptable for processing (COAP).
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the parties’ demeanors). In custody matters, our overriding concern is the best
interests of the children. Iowa R. App. P. 6.904(3)(o). Because we base our
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).
We allow the district court “considerable latitude” in fashioning an award of
spousal support. In re Marriage of Mann, 943 N.W.2d 15, 20 (Iowa 2020). We
intervene only where there is a failure to do equity. In re Marriage of Gust, 858
N.W.2d 402, 416 (Iowa 2015).
When a party challenges the authority of a district court, we review for
correction of errors at law. See In re 2018 Grand Jury of Dallas Cnty., 939 N.W.2d
50, 55 (Iowa 2020).
III. Analysis
A. Is the decree null and void?
Because the validity of the decree is central to reaching the rest of the
issues, we start with Alyssa’s claim that Judge Howes was “not a judge” when she
rendered her opinion. True, Judge Howes retired as of midnight on January 7.
She issued the Milnes’ dissolution decree on January 8. The e-filed copy had a
time stamp of 5:09 a.m. Later that day, at 3:12 p.m., then Acting Chief Justice
David Wiggins filed an order in Scott County district court assigning retired Judge
Howes to temporary service under Iowa Code section 602.1612.4 The order stated
her temporary service “begins January 8, 2020 and ends February 7, 2020.”
4 District judges “may with their consent be assigned by the supreme court to
temporary judicial duties on a court in this state if the assignment is deemed
necessary by the Supreme Court to expedite the administration of justice.” Iowa
Code § 602.1612(1) (2020).
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Attached to the chief justice’s order was a consent form signed by Judge Howes
agreeing to take on temporary judicial duties starting on January 7.
From this timeline, Alyssa urges us to vacate the decree. She first cites
Babcock v. Wolf for the prosaic notion that a judge’s decision must be “made and
completed before the expiration of the term of office.” 28 N.W. 490, 491 (Iowa
1886). In Babcock, the court mulled whether a judge’s written decision was
“rendered” when the judge deposited it with an express company for delivery to
the clerk of court (two days before his term expired on December 31, 1884), or
when it was file stamped by the clerk (one day after his retirement). Babcock held
the judge’s decision was “made” before it was handed over to the delivery
company. Leaping to modern-day electronic filing, Alyssa contends Judge Howes
did not finalize the decree until she uploaded her work onto EDMS at 5:09 a.m.,
the day after her retirement.
Aside from the difficulty of comparing e-filing to depositing documents with
express services in the 1880s, Alyssa’s reliance on Babcock does not account for
the supreme court’s remedial order. Yet, in her view, that order “did not close the
gap” from midnight on January 7 to 3:12 p.m. on January 8. We disagree. Court
orders may have retroactive effect. See generally Casey’s Gen. Stores, Inc. v.
Blackford, 661 N.W.2d 515, 525 (Iowa 2003) (noting “judicial decisions generally
operate retroactively and prospectively”). As Jeff argues, the supreme court “did
not assign any specific timing restrictions to its order; such as ‘effective as of the
date/time of this ruling.’” Without question, the supreme court intended to
“expedite the administration of justice”—a purpose served by issuing the decree
drafted by Judge Howes dissolving the Milnes’ marriage. Judge Howes was not
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obliged to refile the decree after the supreme court issued its order appointing her
to temporary service. The original decree was valid.
B. Should the parties have joint legal custody or joint physical
care of their children?
As his opening salvo, Jeff argues the district court erred in awarding joint
legal custody. Before addressing his argument, we pause to clarify that the decree
did not award full “joint legal custody” as that term is defined. See Iowa Code
§ 598.1(3) (listing rights and responsibilities as including “equal participation in
decisions affecting the child’s legal status, medical care, education, extracurricular
activities, and religious instruction”). Instead, the district court unbundled those
rights and made Jeff the “sole decider on medical issues” and “future educational
needs” of the children. The court gave the parties joint decision-making authority
on religious instruction.
Neither party takes direct aim at the hybrid legal-custody decision. In asking
for sole custody, Jeff argues “inherent in that decision” was the court’s belief that
the parents could not communicate or cooperate about the children’s basic needs.
In defending the grant of joint legal custody, Alyssa ignores the district court’s
carve outs for medical and education decisions. For instance, she claims she will
“include Jeff in making any medical decisions” despite the fact the current decree
reserves those decision for Jeff. And because the parties do not challenge the
hybrid legal custody, they cite no authority either allowing or prohibiting this
practice.
So we turn to the code. Chapter 598 appears to consider joint custody and
sole custody as all-or-nothing propositions. The statute on “custody of children”
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allows courts to “provide for joint custody of the child by the parties.” Iowa Code
§ 598.41(1). In fact, when either parent applies for joint custody, the court shall
consider ordering equal participation in decision making even if the parents do not
agree to joint custody. Id. § 598.41(2)(a). If the court grants sole custody to one
parent, it must cite clear and convincing evidence that joint custody is
unreasonable and not in the children’s best interest to the extent that the legal
custodial relationship between the children and a parent should be severed. Id.
§ 598.41(2)(b).
These custody statutes do not mention assigning sole decision-making
authority for some responsibilities of child-rearing and joint participation for others.
See Hansen, 733 N.W.2d at 690 (“When joint legal custody is awarded, ‘neither
parent has legal custodial rights superior to those of the other parent.’”). Yet we
have found a smattering of cases where the district court has unbundled the rights
listed in section 598.1(3) and (5). See, e.g., Sloan v. Casey, No. 15-0921, 2015
WL 9451093, at * 7–8 (Iowa Ct. App. Dec. 23, 2015) (upholding modification of
joint legal custody to make one parent solely responsible for scheduling medical
appointments for child); In re Marriage of Bates, No. 11-1293, 2012 WL 1440340,
at *4 (Iowa Ct. App. Apr. 25, 2012) (affirming joint legal custody was unreasonable
as it relates to health-care decisions). As it happens, our resolution of Jeff’s
custody claim allows us to avoid the unbundling issue.
Jeff claims joint legal custody is not in the best interests of C.M. and A.M.
To test his hypothesis, we examine these statutory factors:
a. Whether each parent would be a suitable custodian for the
child[ren].
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b. Whether the psychological and emotional needs and
development of the child[ren] will suffer due to lack of active contact
with and attention from both parents.
c. Whether the parents can communicate with each other
regarding the child[ren]’s needs.
d. Whether both parents have actively cared for the child[ren]
before and since the separation.
e. Whether each parent can support the other parent’s
relationship with the child[ren].
f. Whether the custody arrangement is in accord with the
child[ren]’s wishes or whether the child[ren] ha[ve] strong opposition,
taking into consideration the child[ren]’s age and maturity.
g. Whether one or both of the parents agree or are opposed
to joint custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child[ren] . . . or the other parent
will be jeopardized by the awarding of joint custody or by
unsupervised or unrestricted visitation. [5]
Iowa Code § 598.41(3). We also consider the factors listed in In re Marriage of
Winter, 223 N.W.2d 165, 166 (Iowa 1974), including the characteristics of each
child and the characteristics of each parent.
On the side of joint custody, both Jeff and Alyssa actively cared for the
children before and since the separation. And they live in close geographic
proximity. Tipping the other way, Jeff is opposed to joint custody. And although
Alyssa defends the grant of joint custody in the decree, her view of the acrimony
in their relationship aligns with Jeff’s perception. Both parents accurately portray
their inability to communicate effectively about their children’s needs. The heights
of animosity between the parents—showcased through their calls to the police and
mutual protective orders—pose serious questions about their ability to support the
5 We don’t find relevant the factors in paragraphs (j) (history of domestic violence)
or (k) (exposure to sex offenders). On the domestic-violence issue, the parties
filed dueling petitions under Iowa Code chapter 236 but neither proved the other
engaged in a pattern of abuse.
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other parent’s relationship with the children. We find clear and convincing
evidence that the relationship between Jeff and Alyssa is too toxic to support joint
legal custody. See In re Marriage of Weidner, 338 N.W.2d 351, 358 (Iowa 1983)
(holding joint custody not likely to be successful when parents were “unable
adequately to communicate with each other regarding their children’s needs”).
With the scales tipping toward sole custody, we next examine the suitability
of each parent to be the primary custodian and the impact of the lack of active
contact and attention from both parents. Legal custody carries the right to make
the big decisions affecting a child’s life, including choices about health care,
education, religion, and extracurricular activities. See Hansen, 733 N.W.2d at 690.
After hearing the evidence and observing the parties, the district court did not feel
comfortable with Alyssa making decisions about the children’s medical or
educational needs. In short, the court did not believe she was a suitable custodian
when it came to making the most critical decisions about the children’s healthy
development. In carving out those key categories, the decree mandated a
situation closer to sole legal custody than joint legal custody. In our de novo
review, we take the logical step to award sole custody to Jeff. Like the district
court, we view Jeff as the more grounded guide for the children when it comes to
choices about their health and well-being. Alyssa is prone to conspiracy theories
and overblown fears inconsistent with medical and developmental advice. This
susceptibility could lead to long-term harm for the children. Her battle against
having them vaccinated is a prime example.
And even before the separation, Alyssa took measures to diminish the
closeness of Jeff’s relationship with the children. Jeff testified he urged marital
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counseling from 2013 through 2017 because he “wanted to be more involved with
the family and the family-related decisions, and Alyssa was making a lot of those
decisions on her own.” Against that backdrop, clear and convincing evidence
supports awarding sole legal custody to Jeff. See In re Marriage of Liebich, 547
N.W.2d 844, 849 (Iowa Ct. App. 1996) (upholding award of sole legal custody to
father when mother was unwilling to support his relationship with children).
Having decided that clear and convincing evidence supports awarding sole
legal custody to Jeff, the subsidiary question of physical care answers itself.
Physical care involves “the right and responsibility to maintain a home” for the
children and provide their routine care. Hansen, 733 N.W.2d at 690. Considering
the list in section 598.41(3), as well as the Winter factors, we find placing physical
care with Jeff will be in the children’s best interests. We recognize a reduction in
their “active contact” with Alyssa may be an adjustment for the children. She has
cultivated a very close relationship with them, at times to the detriment of their
equal interactions with Jeff. Yet all in all, we find perpetuating the conflict inherent
in these parents’ joint decision-making will be more detrimental to the children than
moving away from shared physical care. See In re Marriage of Harris, 877 N.W.2d
434, 441 (Iowa 2016) (recognizing parental discord disrupts children’s lives);
Hansen, 733 N.W.2d at 698 (“[E]xpressions of anger between parents can
negatively affect children’s emotions and behaviors.”).
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Given these modifications to the legal custody and physical care provisions,
we remand for court to set a visitation schedule and recalculate child support
payments.6
C. Was the spousal support award equitable?
At trial, Alyssa asked for monthly spousal support of $1250 for two and one-
half years. After accepting Alyssa’s financial statement that her 2019 income
would be just under $80,000 per year (half as much as Jeff was earning), the
district court ordered Jeff to pay $1000 per month for two years. Then Alyssa
moved to enlarge and amend the decree, alleging her annual income was only
$10,860. The court found merit in Alyssa’s assertion that she would need more
than $1000 per month to stay in the house. So the court amended the decree to
order Jeff to pay $2500 per month for two years.
On appeal, Jeff argues the motion to enlarge contradicted Alyssa’s trial
testimony, as well as her financial affidavit. He argues Alyssa, as a licensed
speech pathologist, is able to earn far more than $10,000 per year. In his view,
she is not entitled to any spousal support but, at a minimum, the original amount
of $1000 per month was equitable. In general, Alyssa defends the spousal support
order. But in passing she complains that Jeff should contribute to her support “for
a much longer time than a 24 month period.” Alyssa acknowledges she is a trained
professional but claims to have sacrificed her own career to raise the children and
advance Jeff’s military endeavors.
6 Because of that remand, we need not address the parties’ arguments concerning
the current child-support award.
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The district court did not specify the kind of spousal support awarded. We
recognize three kinds: “traditional, rehabilitative[, and] reimbursement alimony.” In
re Marriage of Witherly, 867 N.W.2d 856, 859 (Iowa Ct. App. 2015) (citing In re
Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005)). Sometimes those
categories overlap. See In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa
2008). The Milnes’ marriage did not last long enough to merit serious
consideration for traditional alimony. See Gust, 858 N.W.2d at 410–11 (discussing
twenty or more years as the common “durational threshold” for traditional spousal
support). And no other factors weigh in favor of permanent spousal support.
Alyssa acknowledged her ability to work full time. In fact, she juggled three part-
time jobs during the separation. Because she spent time out of the workforce when
the children were young and Jeff was deployed, we find rehabilitative alimony
would be appropriate to help her through a limited period of retraining following the
divorce. See Becker, 756 N.W.2d at 826.
In determining a spousal support award, we consider the factors in Iowa
Code section 598.21A(1) including (1) the marriage’s length; (2) the parties’ ages
and physical and emotional health; (3) the property distribution under section
598.21; (4) the educational attainments of the parties; (5) their relative earning
capacities; (6) the feasibility of the party seeking maintenance to become 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; (7) tax
consequences; and (8) any mutual agreements. This marriage was neither short
nor long. The parties are still relatively young, enjoy good health, have college
degrees, and solid work histories. But given their division of child-rearing duties
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during the marriage, Jeff has a significantly higher earning capacity than Alyssa
does. That final distinction calls for an award of spousal support. Alyssa testified
at trial that $1250 per month for two and one-half years was a fair amount. We
agree and modify the decree to award her $1250 per month for thirty months.
D. Should the district court have included a check from Alyssa’s
aunt for $61,825 in the marital estate?
After her Aunt Louise died in 2017, Alyssa received a check for $61,825. It
was a “resident refund” from Westminster Manor, the senior community in Austin,
Texas, where the aunt lived. Five years earlier, the aunt sent an email to Alyssa
and Jeff explaining that she had paid an annuity to Westminster when she moved
in and they would be receiving a refund when she died. The aunt closed by saying:
“I want you to know how proud I am of both of you and what an honor it is to
contribute to the education and training for two (?) wonderful children.” Also in
2012, while she was still alive, the aunt gave a gift of $240,000 to Alyssa and Jeff.
The district court determined that initial gift qualified as marital funds. But
the court decided the Westminster refund belonged to Alyssa alone. Jeff
challenges that second decision, contending the $61,825 was subject to equitable
division in the decree.
The resolution of his contention starts with Iowa Code section 598.21(5).
That statute requires divorce courts to “divide all property, except inherited
property or gifts received or expected by one party, equitably between the parties”
after considering a host of factors. See Iowa Code § 598.21(5)(a)–(m). Inherited
property or gifts received by either party before or during the marriage is the
property of that party and is not subject to property division in the divorce “except
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upon a finding that refusal to divide the property is inequitable to the other party or
to the children of the marriage.” Id. § 598.21(6).
In deciding if it would be equitable to divide the gift from Alyssa’s aunt, we
consider: (1) the parties’ contributions toward the property’s preservation; (2) the
existence of any independent close relationship between the aunt and Jeff; (3) the
parties’ separate contributions to their economic welfare to whatever extent those
contributions preserve the property for either of them; (4) any special needs of
either party; and (5) any other matter which would render it “plainly unfair” to Jeff
or the children to set aside the property for Alyssa’s exclusive enjoyment. See In
re Marriage of McDermott, 827 N.W.2d 671, 679 (Iowa 2013). As part of
considering those five factors, we weigh the length of the marriage and the length
of time the party or parties held the property after receiving it. See In re Marriage
of Fall, 593 N.W.2d 164, 166 (Iowa Ct. App. 1999).
In seeking to modify the decree, Jeff points to the aunt’s email that was
addressed to both him and Alyssa. He also cites the aunt’s expressed belief that
the money would go toward the children’s education. To counter, Alyssa notes the
check was made out only to her. She also complains that Jeff misused the earlier
$240,000 received from her aunt by withdrawing it from education accounts
established for the children. Alyssa testified she was hesitant to cash the later
check until she and Jeff discussed what to do with the money. She wanted to use
the money to fund trips for the children to see their maternal grandmother more
often or to hire additional help for C.M.
In addressing Jeff’s challenge, we first find Louise intended her niece Alyssa
to be the sole recipient of the refund check. See Liebich, 547 N.W.2d at 850. As
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proof of that, Westminster addressed the check to Alyssa alone. Second, we find
nothing inequitable in nondivision of the refund. See id. Alyssa intended to
preserve her aunt’s gift for specific purposes benefitting the children. And other
than the aunt’s salutation to both Jeff and Alyssa in her email, nothing in the record
reveals Louise had an independent, close relationship with Jeff. Still, Jeff had
access to the earlier, larger gift from the aunt. And Jeff has not highlighted any
special needs or other reasons that it would be unjust for Alyssa to have sole rights
to the refund. We affirm on this issue.
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E. Did the decree equitably distribute marital assets and debts?
Jeff next argues the district court inequitably divided their assets and debts.
He provides the follow chart to illustrate the division.7
Asset/Debt Jeff Alyssa
Marital Home Equity $100,945
2014 Honda Pilot $21,067
2011 Toyota Sienna $12,029
Roth IRA (Jeff) $3991.16 $3991.16
Roth IRA (Alyssa) $30,049.72
Thrift Savings Plan $70,545.25 $70,545.25
Wells Fargo IRA $19,563
Teachers Retirement $23,085.69
Account
USAA Fixed Rate CD $35,417.30 $35,417.30
for C.M.’s college
USAA Fixed Rate CD $34,236 $34,236
for A.M.’s college
Legos $25,000
Total: $190,265.71 $329,862.32
Jeff recognizes district courts are not required to evenly divide assets. See
Hansen, 733 N.W.2d at 702 (“An equitable division is not necessarily an equal
division.”). But he claims the 36/64 split in Alyssa’s favor failed to achieve equity.
Jeff also asks us to modify the district court’s orders dividing his retirement
accounts. He objects to paying the costs of the surviving spouse annuity of his
7Jeff acknowledges that because the district court divided the retirement accounts
under the Benson formula, the exact value of each party’s share was unavailable.
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Federal Employee Retirement System (FERS) account and contends we should
calculate the marital share of his accounts from the date of the parties’ separation.
In response, Alyssa does not dispute Jeff’s math. But she insists the
division was fair because the district court was accounting for Jeff’s withdrawals
and spending during the pendency of the dissolution petition. She contends Jeff
“drained” the parties’ bank accounts of $232,000 in June 2017. She also claims
Jeff dissipated assets by spending $18,250.46 on Legos and $10,250 on vacations
after the parties entered a stipulation in August 2017 enjoining them from spending
beyond household expenses, attorney fees, and other litigation costs. 8 In reply,
Jeff denies dissipating marital assets and points to evidence in the record
accounting for spending on family expenses.
In most cases, it is equitable to value the marital assets as of the trial date.
In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997). But an
alternate valuation date may be fair in certain circumstances. Id. Jeff does not
make a compelling case for changing the valuation date for his retirement
accounts. He claims a “significant delay in the trial process” and the timing of the
decree prejudice him financially but does not explain how. We discern no reason
to depart from the traditional valuation date. Neither do we find it inequitable to
order Jeff to pay the full cost of the surviving spouse annuity.
True, the division of assets was far from a fifty-fifty split. But it was
equitable. We decide what is a just division based on section 598.21(5). See
8 In ruling on Alyssa’s motion to enlarge, the district court characterized Jeff’s
recent spending on Legos as “extremely irresponsible” but stopped short of finding
Jeff in contempt for dissipation of marital assets.
21
McDermott, 827 N.W.2d at 678. The driving factors here are the unequal earning
capacities of the parties and Alyssa’s contributions to Jeff’s military career by
maintaining their home through many transfers and deployments. We also
consider the property settlement in tandem with the spousal support, which we
reduced for the reasons discussed above. See In re Marriage of Lattig, 318
N.W.2d 811, 815 (Iowa Ct. App. 1982) (“When asked to review an individual
economic provision of a dissolution decree, we consider all the provisions together
as an integrated whole.”). All things considered, we decline to modify the property
division.
F. Is Alyssa entitled to appellate attorney fees?
Finally, Alyssa asks us to order Jeff to pay her attorney fees on appeal. We
decline to do so. An award of attorney fees is not a matter of right, but rests within
our discretion. In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App.
1994). We consider Alyssa’s needs, Jeff’s ability to pay, and the relative merit of
their positions on appeal. Id. Here, each party succeeded on some appellate
issues. And both parties have the ability to pay their own attorney fees. We order
Jeff to pay the costs of the appeal.
AFFIRMED AS MODIFIED AND REMANDED.
Schumacher, J., concurs; Vaitheswaran, P.J., partially dissents.
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VAITHESWARAN, Judge (concurring in part and dissenting in part).
I respectfully dissent from those portions of the majority opinion granting
Jeff sole legal custody and physical care of the children.
I agree our dissolution statute provides for two forms of legal custody: joint
and sole. I, too, would find it unnecessary to reach the question of whether
custodial rights may be unbundled, but for a different reason than articulated by
the majority. In my view, the record lacks evidentiary support for the district court’s
decision to unbundle those rights.
The district court first carved out medical decisions from the joint-legal-
custody bundle. The court concluded Alyssa was “not capable of making the
correct medical decisions for the children.” The court cited Alyssa’s “misguided
beliefs,” the most notable being her reluctance to have the children immunized.
Alyssa conceded she was initially opposed to vaccinations. But she also
stated she fully complied with the court order requiring her to obtain them. The
following exchange is instructive:
Q. Okay. Have you been found in contempt for violating that
order? A. No.
Q. Has anyone accused you of not vaccinating your kids?
A. No.
Q. Have you taken the kids to all of their vaccine
appointments? A. Every single one.
Q. Has Jeff ever had to do that? A. No.
Q. Has Jeff had to take the kids because you refused to do
that? A. No.
Q. Do you understand now that the court system takes the
approach that children should be vaccinated? A. Yes.
Q. Are you willing to continue to vaccinate your kids? A. Yes.
In short, Alyssa adhered to the statutory immunization requirement after the district
court ruled against her on her exemption request. See Iowa Code § 139A.8(1)
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(requiring immunization of children, “subject to the provisions of subsection[ ] . . .
(4)); 139A.8(4)(a)(2) (not requiring immunizations if a parent “submits an affidavit
. . . stating that the immunization conflicts with the tenets and practices of a
recognized religious denomination of which the applicant is an adherent or
member”). In light of her compliance with the court order, I do not believe her initial
reluctance to immunize the children was grounds to strip her of her joint legal right
to make medical decisions on behalf of the children.
On a related note, the district court found Alyssa did not “believe in modern
medicine.” At the same time, the court found she favored a surgical procedure for
the older child that was recommended by her physician. The court did not attempt
to reconcile these contradictory findings. In fact, Jeff was the parent who balked
at proceeding with surgery. He obtained a second opinion at Mayo Clinic, a visit
he recorded and transcribed. At the scheduled appointment, Alyssa did not
disparage medications, as the district court also found, but indicated she was
pleased with the effect of a medicine that was added to the child’s regimen. She
also appeared amenable to certain testing proposed by the physician and agreed
with Jeff that their regular physician, as well as the surgeon slated to perform the
surgery, would not oppose a delay in the surgery to perform the tests. Jeff
reiterated his interest in “options . . . to avoid surgery.” In my view, the second-
opinion conference underscores Alyssa’s willingness to abide by the prescriptions
of modern medicine.
In conjunction with the medical-care issue, the district court found that
Alyssa placed the older child on a “restrictive diet” not recommended by health
care providers. But the record discloses that it was a physician who initially
24
recommended removal of dairy products from the child’s diet to see if the change
would ameliorate certain abdominal issues. According to Alyssa, “He said there
was not a test that we could give, so we needed to use observation.” Although
Jeff pointed out the physician “never said that there was [some] type of scientific
reason to remove dairy,” he did not deny that the recommendation came from a
physician. As for Alyssa’s avoidance of gluten in the child’s diet, she conceded
she made the change on her own, but she informed the Mayo physician of her
decision and asked, “[D]o you have a test you can give us to tell us which foods
cause problems?” The physician responded, “I wish it was that simple.”
Notably, a dietician at the University of Iowa Hospitals and Clinics
recommended “soy products” to cover the “[d]airy category” and recommended
alternatives to gluten, essentially contradicting the court’s finding that Alyssa’s fear
of dairy products and gluten was irrational. The dietician stated,
[T]here really isn’t one trigger that everyone has, as far as increasing
abdominal pain or stool output. I will say the most common ones I
have seen in my kiddos are dairy, and actually wheat, but not
everyone will respond to both of those. The majority of them, if they
have a trigger, it is to dairy.
At one point in the conversation, Jeff asked, “[s]o we agree on soy, Alyssa?”
Alyssa responded, “Okay.” In light of this exchange, Jeff’s criticism of Alyssa for
giving the child soy milk rather than dairy milk rings hollow.
The district court also found Alyssa “developed a fear of the children having
sugar, even though they were underweight.” In fact, Alyssa fed the children honey,
which the hospital dietician stated “is pretty high in sugar.” She also purchased
donuts for the children to increase the older child’s caloric intake, a practice that
contradicts the district court’s finding that she did “not seem to . . . understand that
25
he should have foods to help him gain weight.” Although the donut purchases may
have deviated from the dietician’s recommendation to add “really small portions”
of processed sugar to the older child’s diet, both parents were prone to this
deviation, with Jeff conceding he regularly served the children ice cream.
In a related vein, Jeff faulted Alyssa for purchasing organic meat but did not
suggest the meat had less nutritional value than the cheeseburgers and ham-and-
cheese sandwiches he fed the children. The parents fed the children on an equal
basis and both recognized the importance of the physician’s recommendation to
give the older child extra protein and fat. Alyssa attempted to do so by “put[ting]
extra slices of meat” on his sandwiches and “slather[ing]” them with mayonnaise.
The district court additionally took issue with Alyssa’s decision to feed the
child egg and banana pancakes for a period of time. The court found that
“[n]utrionists” told her “that [was] not the correct way to feed” the child. To the
contrary, the hospital dietician recognized that fruit would have to be given to the
child in pureed form and she suggested the addition of applesauce or peaches to
the pancakes to enhance their fruit content. She also recommended pureed baby
foods for the child, a suggestion the ten-year-old categorically rejected. Notably,
Alyssa had long since stopped serving the pancakes, rendering that particular
“dietary restriction” a moot point.
I would conclude the record does not support the district court’s
determination that Alyssa ignored or minimized medical advice or professional
dietary recommendations. Accordingly, I would modify the dissolution decree to
return medical decision-making to the joint-legal-custody bundle.
26
I turn to the district court’s decision to divest Alyssa of input into educational
decisions. The district court found that Alyssa enrolled the children in a private
Montessori school, whereas Jeff preferred to have the children attend public
schools. The court concluded it was “in the children’s best interest for Jeff to make
their educational decisions.” Again, I find scant evidentiary support for the district
court’s decision to remove educational decisions from the joint-legal-custody
bundle.
Preliminarily, the suggestion that Jeff had no input into the decision to enroll
the children at a Montessori school is belied by his testimony that “[w]e both”
signed the children up initially. The first time he objected to their enrollment at the
school was after he filed the dissolution petition. He testified “an aspect of” his
objection was the expense.
Nor does the record support the suggestion that the children suffered
educationally or socially at the Montessori school or that the school was
“insufficient to meet [the children’s] current and future educational needs.” Their
teacher, who had a degree in elementary education and had been teaching for
seventeen years, testified “[t]hey love coming to school. They love learning. They
explore different avenues that interest them. They are both fabulous readers and
writers and artists.” She stated their performance was above average relative to
children throughout the State and, given the smaller class sizes, she was able to
provide more one-on-one time with the students. Another teacher, who had
Montessori certifications and more than fifty years of teaching experience, stated
the older child is “a very bright boy, and he is doing very well.”
27
As for the curriculum, a teacher testified the school had a syllabus to apprise
the teachers “what the standards are for each grade.” Additionally, parents could
opt to have the children take the standardized tests given at the public schools
after third grade. Parents also were required to file a statement with the local
school district attesting that they were “providing . . . competent private instruction.”
And, although the Montessori philosophy focused on “individualized education,”
the children were not in a classroom by themselves. Nine children, including the
older child, were in what the school classified as “upper elementary,” and eleven
children, including the younger child, were in “lower elementary.” One of the
teachers testified the children would have no problem transitioning into a public
school setting at a later point and they could “dual enroll” and “have access to all
of [the public school’s] special services,” including “athletics [and] any classes that
they might want to take.”
Because I believe the record does not support the district court’s
determination that Alyssa made poor educational choices, I would return education
to the joint-legal-custody bundle.
All this is a long way of saying I believe Alyssa was entitled to joint legal
custody of the children as the term is statutorily defined. See In re Marriage of
Hynick, 727 N.W.2d 575, 579 (Iowa 2007) (“When parties are awarded ‘joint legal
custody,’ ‘both parents have legal custodial rights and responsibilities toward the
child’ and ‘neither parent has legal custodial rights superior to those of the other
parent.’”). I would modify the decree to grant her full joint custodial rights.
Remaining for discussion is the district court’s decision to grant the parents
joint physical care of the children. I would affirm that portion of the decree. The
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district court stated, “Both parents [were] loving parents that provid[ed] enriching
activities for the children.” I agree.
I recognize the parents’ animosity towards each other was a factor
weighing against joint physical care. See In re Marriage of Hansen, 733 N.W.2d
683, 698 (Iowa 2007) (citing the degree of conflict between the parents as a factor
for consideration in the joint-physical-care determination). But, in my view, much
of the dissension amounted to legal posturing, and Jeff was equally to blame.
Notably, the parents worked together on important matters involving the
children, including the older child’s health needs; both were actively involved in
the children’s daily lives; and, at the end of the day, both appeared to have the
children’s best interests at heart. Once the rancor of these proceedings is behind
them, I trust they will minimize conflict for the sake of the children.