No. 1-550 / 00-1660.Court of Appeals of Iowa.
Filed January 28, 2002.
Appeal from the Iowa District Court for Black Hawk County, MARGARET L. LINGREEN, Judge.
The petitioner appeals the child support, visitation, alimony, and property distribution provisions of the parties’ dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.
Jay Roberts of Roberts, Steven Lekar, Waterloo, for appellant.
Deborah J. Hughes of Crawford, Sullivan, Read Roemerman, P.C., Cedar Rapids, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
HUITINK, P.J.
I. Background Facts and Proceedings.
Thomas and Tamara Frerichs were married on June 3, 1989. They have two children: Scott, born January 4, 1992, and Abigail, born October 24, 1993.
Thomas is thirty-nine years of age. He has practiced law since 1990 and is the sole shareholder of Frerichs Law Firm, P.C. in Waterloo.
Tamara is thirty-seven. Although she has earned substantial college credits, she has not yet completed her undergraduate work. Tamara was unemployed as of the trial date and has no significant employment history.
The parties separated in January 1998. The petition requesting dissolution of their marriage was filed on May 10, 1999. The matter was not reached for trial until July 27, 2000.
While this matter was pending, Tamara and the children remained in the family’s Waterloo home. Thomas visited the children regularly, including three overnight midweek visits. Thomas paid $3000 a month temporary support to Tamara and the children and also made the monthly payments on Tamara’s vehicle.
The decree dissolving the Frerich’s marriage awarded the parties joint custody of their children. Tamara was awarded physical care subject to Thomas’s right to visit the children as specified.
The district court determined Thomas’s net monthly income was $3757.57. Although Tamara was unemployed, the court found her net monthly earning capacity was at least $2411. As a result of these findings, Thomas was ordered to pay $1056 monthly child support. Thomas was also ordered to pay Tamara $1000 rehabilitative alimony for forty-eight months and $3000 of Tamara’s attorney fees.
The district court’s property division noted the parties’ pretrial division of their household assets and personal effects. As a result, no values were assigned to these items. Under our interpretation of the decree, the remainder of the parties’ assets and liabilities were divided as follows:
Thomas Asset Value
Mercedes 250SE $ 1,000
Roth IRA 3,574
Checking Account 300
P.C. Profit Sharing 54,232
Office Building 180,000
Frerichs P.C. equity (206)
Frerichs P.C. note 27,784
TOTAL ASSETS: $266,684
Liability Value
Loans from Thomas’s Parents ($ 27,093)
Loans from Union Planters Bank[*] (150,697)
Real Estate Taxes (10,000)
MasterCard (5,000)
TOTAL LIABILITIES: ($192,790)
TOTAL: $73,894
Tamara Asset Value
Ford Windstar $ 7,000
Roth IRA 3,574
Checking Account 800
P.C. Profit Sharing 44,232
Marital Home Proceeds 27,450
Savings Account 1,300
Life Insurance Policy 751
TOTAL ASSETS: $ 85,107
Liability Value
Loan from D.L. Buck ($ 3,000)
Loan from Tamara’s Parents (1,000)
Discover Card (2,700)
TOTAL LIABILITIES ($6,700)
TOTAL: $78,407
On appeal Thomas contends the visitation provisions of the decree are inadequate and impractical. He also claims the trial court overstated his monthly income resulting in an excessive child support award. In addition, Thomas challenges the equity of the court’s property division, Tamara’s entitlement to alimony, and the trial court’s award of trial attorney fees.
II. Standard of Review.
Our review is de novo. In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996). We are obliged to examine the entire record and adjudicate rights anew on the issues property presented. In re Marriage of Geil, 509 N.W.2d 738, 740 (Iowa 1993). No hard and fast rules govern the economic provisions in the dissolution action; each decision turns on its own uniquely relevant facts. In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991). We accord the trial court considerable latitude in resolving disputed claims and will disturb a ruling only when there has been a failure to do equity. Benson, 545 N.W.2d at 257.
III. Visitation.
In resolving visitation issues, we are guided by Iowa Code section 598.41(1)(a) (1999), which states in pertinent part,
The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents. . . .”
Generally, liberal visitation is in a child’s best interests. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992). It is important, however, not to impose a shared-type of physical care arrangement under the disguise of expansive visitation because it deprives children of the needed stability in their lives. See In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996).
Thomas argues that the trial court failed to grant liberal visitation. In particular, Thomas complains that prior to the court’s decree he was getting three overnight visits per week, while the decree only provides for two overnight visits every two weeks. He also argues that he should be given summer visitation with the children during the weeks they are with Tamara and that midweek visitation should not begin during the hours he is traditionally at work, given the long distance he must travel to Tamara’s new residence in Cedar Rapids. We disagree.
The district court’s decree provided in pertinent part:
The parties are free to make whatever visitation arrangements they mutually agree upon, taking into account any school and extracurricular activities of the children. Unless the parties otherwise mutually agree, Petitioner shall have visitation during the following times:
A. While school is in session (approximately September through May), on alternating weekends commencing at 5:30 p.m. on Fridays and concluding at 5:30 p.m. on Sundays and one evening per week from after school until 8:30 p.m. If school is not in session on a Monday following Petitioner’s scheduled weekend visitation, he may return the children Monday evening at 5:30 p.m., rather than Sunday.
. . . .
F. For a total of six weeks during the summer months of June, July and August when school is not in session. This visitation shall be exercised so that Petitioner will not have the children for more than 14 consecutive days at a time. . . .
With the summer visitation schedule this Court provided herein, the Court has not allowed for alternating weekend visitation or mid-week visitations. Nothing prevents the parties, by mutual agreement, from arranging for such visitations, if they so desire.
Contrary to Thomas’s claims, we find the midweek and summer visitation provisions are particularly well suited to Tamara’s relocation and his work schedule. When these provisions are considered with the holiday and other special visitation rights ordered, Thomas’s visitation rights are sufficient to achieve the statutory objectives earlier recited. We affirm on this issue.
IV. Property Division.
Thomas complains that the court failed to marshal the parties’ assets and liabilities, depriving him of the ability to review the court’s calculations, which he claims were based on numerous factual errors and conflicting findings of fact as to the value of Thomas’s interest in Frerichs Law Office, P.C. Thomas submits that the division results in a disparity of $130,000 in Tamara’s favor.
Parties in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa Ct. App. 1997). Iowa courts do not require an equal division or percentage distribution. Id. The determining factor is what is fair and equitable in each circumstance. Id. Distribution of property should be made in consideration of the criteria in Iowa Code section 598.21(1). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct. App. 1983). It is important for trial courts to assign values and set forth the net property distributions in the decree: (1) to enable the reviewing court to assess whether an equitable division of property was effected; and (2) to aid the parties in better understanding their respective property awards, which would, in some cases, dispense with the need for an appeal. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct. App. 1998).
Although the decree does not recite the parties’ net property distribution, the trial court’s findings of fact are nevertheless sufficient for us to determine the equity of the property division ordered. Contrary to Thomas’s claim, there is not a $130,000 disparity in the parties’ net property distribution. The claimed disparity erroneously includes the gross amount of Thomas’s alimony obligation as a credit against the value of property awarded to him. Thomas also failed to include the $27,750 debt owed him by Frerichs Law Firm, P.C. in computing the claimed disparity.
As noted earlier, an equal division of the parties’ interests and liabilities is not required. The fact that Tamara’s net property award is approximately $4513 more than Thomas’s does not make the award inequitable. Our review of the property distribution indicates that it preserves for Thomas those assets essential to his profession. It also fairly credits the parties for their respective contribution to the accumulation of assets and liabilities during their marriage.[1] Because there is no resulting inequity, we also affirm on this issue.
V. Alimony.
Thomas also challenges the equity of the court’s grant of rehabilitative alimony in light of what he considers to be an inequitable property division. See In re Marriage of Miller, 532 N.W.2d 160, 162 (Iowa Ct. App. 1995) (property division and alimony should be considered together in evaluating their individual sufficiency). The purpose of rehabilitative alimony is to support an economically dependent spouse through a limited period of further education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989). It is particularly appropriate when the dependent spouse has been out of the job market for a significant period of time. Roberts, 545 N.W.2d at 343. Although our review of the trial court’s award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. See Benson, 545 N.W.2d at 257.
As noted earlier, the parties were married in 1989. Tamara had no significant employment experience during the marriage. The record also indicates that she is interested in pursuing additional education or training in computer technology. We, like the district court, find an award of rehabilitative alimony under these circumstances is particularly appropriate. The amount and duration of alimony awarded below is necessary and sufficient to enable Tamara to achieve self-sufficiency. Contrary to Thomas’s claims, the award is not beyond his ability to pay. We also reject his claim that the amount of Tamara’s net property award makes an alimony award unnecessary. We affirm on this issue.
VI. Child Support.
Thomas also argues that the district court erred in calculating his income for purposes of child support. He claims the district court improperly included the value of his personal use of a corporate vehicle in computing his net monthly income. A noncustodial parent’s child support obligation is determined by application of the child support guidelines adopted by our supreme court. Iowa Code § 598.21(4). Application of the guidelines requires the court to determine the net monthly income of the custodial and noncustodial parent. In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991). The definition of net monthly income does not encompass employee benefits, such as the use of a corporate vehicle. In re Marriage of Huisman, 532 N.W.2d 157, 159 (Iowa Ct. App. 1995). Rather, the value of the use of the vehicle may be a factor that justifies deviation from the amount of support provided in the guidelines. Id.
The district court improperly included the value of Thomas’s personal use of the corporate vehicle in calculating Thomas’s net monthly income. Accordingly, the resulting child support obligation needs to be recomputed. Because we find the record insufficient for this purpose, it is necessary to remand this issue to the district court with instructions to properly compute Thomas’s child support under the guidelines. Lastly, we note that Thomas’s incidental personal use of the corporate vehicle does not justify a deviation from the guidelines.
VII. Attorney Fees.
Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct. App. 1983). To overturn an award the complaining party must show the trial court abused its discretion. Id. Attorneys fees must be for fair and reasonable amounts and based on the parties’ respective abilities to pay. In re Marriage of Cooper, 451 N.W.2d 507, 510 (Iowa Ct. App. 1989). We find no abuse of discretion in the trial court’s decision to award Tamara $3000 for her trial attorney fees. We affirm on this issue.
An award of appellate attorneys fees is not a matter of right, but rests within this court’s discretion based on the parties’ respective financial positions. In re Marriage of Flattery, 537 N.W.2d 801, 804 (Iowa Ct. App. 1995). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct. App. 1981). We award Tamara $500 appellate attorneys fees.
In the absence of a cross appeal, we decline to consider Tamara’s request for an additional property award. See In re Marriage of Novak, 220 N.W.2d 592, 598 (Iowa 1974).
AFFIRMED AS MODIFIED AND REMANDED.