Opinion
No. 4-641 / 04-0734
Filed January 13, 2005
Appeal from the Iowa District Court for Crawford County, Michael S. Walsh, Judge.
Nikay Schaffer appeals from the decree dissolving her marriage to Daniel Schaffer. AFFIRMED AS MODIFIED.
Reed Reitz of Reimer, Lohman Reitz, Denison, for appellant.
Frank Comito of Neu, Minnich, Comito Neu, P.C., Carroll, and Colin McCullough of the McCullough Law Firm, Sac City, for appellee.
Heard by Huitink, P.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Nikay Schaffer appeals from the custody, property distribution, alimony, and attorney fees portions of the decree dissolving her marriage to Daniel Schaffer. We affirm as modified.
I. Background Facts and Proceedings.
Daniel and Nikay were married on April 5, 1998. Each had been married previously. Nikay had two sons, Steven and Zachary, and one daughter, Chelsea, from previous relationships, while Daniel had two daughters from his first marriage. Daniel's ex-wife had custody of his daughters, while Nikay had custody of her three children. Additionally, the parties had one child together, Jacob, who was born on October 5, 1998. In December of 2000, Daniel adopted Steven, and in September of 2001, he adopted Zachary. During her pregnancy with Jacob, Nikay developed deep vein thrombosis in her legs and was subsequently found disabled by the Social Security Administration.
On September 19, 2002, Daniel filed a petition to dissolve the marriage. Following a trial, the district court granted the petition and dissolved the marriage. The court granted the parties joint legal custody of the three minor children, Steven, Zachary, and Jacob, but named Daniel as their physical caretaker.
NiKay appeals the district court's decision on the physical care issue. She also challenges the property division ordered by the district court because it granted Daniel an interest in a savings account held in Chelsea's name, but refused to award Nikay the proceeds from the sale of her premarital home. Finally, Nikay challenges as inadequate the rehabilitative alimony award of $500 per month for twenty-four months and contends Daniel should be required to pay her trial and appellate attorney fees.
II. Scope of Review.
We review dissolution decrees de novo. See Iowa R. App. P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). Even though we engage in a de novo review, we will not disturb the trial court's conclusions unless there has been a failure to do equity. In re Marriage of Wahlert, 400 N.W.2d 557, 560 (Iowa 1987). We give weight to the trial court's findings of fact, particularly when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Physical Care.
The district court granted Daniel physical care of Steven, Zachary, and Jacob. In making this decision, the court was particularly influenced by Nikay's conduct after her separation from Daniel, and noted her propensity to be "self-consumed with satisfying and pursuing her own individual interests, even to the detriment of the welfare of the minor children." The dissolution decree recounts Nikay's serial amorous relationships with men and includes a finding that she exposed the children to those relationships. The court further found Daniel to be more credible and "more capable of providing for and ministering to the day-to-day needs of the children." On appeal, Nikay urges this court to reverse the physical care decision.
The critical issue is not which parent possesses the greater right to the children, rather the controlling consideration must be their best interests. Heyer v. Peterson, 307 N.W.2d 1, 7 (Iowa 1981). This decision requires selection of a custodial parent who can minister more effectively to the long-range best interests of the children. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct.App. 1996). The objective should always be to place the children in the environment most likely to bring them to healthy physical, mental and social maturity. See In re Marriage of Winter, 223 N.W.2d 165, 167 (Iowa 1974). The court should also consider the characteristics and needs of the children, the characteristics of the parents, the capacity and desire of each parent to provide for the needs of the children, the relationships of the children with each parent, the nature of each proposed environment and the effect of continuing or changing an existing custodial status. Id.
We believe both Daniel and Nikay are generally capable and fit parents, and find either would be a suitable caretaker. However, custody and physical care disputes require the court to make difficult choices. Upon our de novo review of the record we find no reason to disturb the district court's decision on physical care of the children. The record appears to bear out the district court's concerns with Nikay's "self-consuming" behavior. We find it unnecessary to recount, in detail, the evidence supporting the district court's findings on this matter, but suffice it to say that Nikay has shown some instability in her interpersonal relationships with men. In one instance, she exhibited particularly poor judgment by taking the children to Omaha and staying in the same motel room with them and her paramour. Furthermore, Daniel presented compelling evidence describing Nikay's extreme mood swings and regular angry outbursts. Although we find no specific evidence in the record that Nikay's conduct has injured the children, we conclude Daniel's stability will better equip him to look after the best interests of the children. We therefore affirm the district court's placement of physical care of the children with Daniel subject to liberal visitation with Nikay.
IV. Property Distribution.
The partners to a marriage are entitled to a just and equitable share of property accumulated through their joint efforts. In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa Ct.App. 1997). Equity does not require an equal division or a percentage division of property. Id. The property distribution should be made pursuant to the criteria codified in Iowa Code section 598.21(1) (2003). Id. A. Chelsea's Account.
At the time of the parties' marriage, a savings account in Chelsea's name had a balance of $8,559.49. At the time of their separation, the account contained $42,330. On April 16, 2002, $32,900 was transferred out of Chelsea's savings account and placed into a CD account in Jacob's name. This transfer was apparently made in an effort to improve Chelsea's prospects for college financial aid. In its property distribution, the district court ordered that the savings account and CD would be distributed as follows: $8,800 would be placed in Chelsea's savings account; Daniel would receive half of the remainder, or $20,666; and Nikay would receive $11,260, representing half the remaining balance minus $9,400 which Nikay withdrew before trial to purchase a vehicle for Chelsea.
On appeal, Nikay maintains the court erred in finding these accounts to be subject to equitable distribution. She asserts "the only portion that could conceivably be considered marital property would be that amount . . . Dan contributed towards Chelsea's support that he had no legal obligation to do." We first note the value of Daniel's support for Chelsea is not quantified in the record. Nikay claims she and Daniel agreed that Chelsea's child support and social security payments would be deposited into Chelsea's account and allowed to accumulate for college expenses. Daniel denies such an agreement was reached, and claims the support and social security payments received for Chelsea were to be placed in the family's joint account and used for living expenses. Daniel asserts he had no knowledge that Nikay was depositing the child support payments in Chelsea's account during the marriage. The district court found the "credible evidence" was that the parties had agreed the payments would be deposited in the family's joint account because Daniel's earnings were supporting Chelsea and the other children before and during the marriage. Because this finding appears to have been largely drawn from credibility determinations, we give it appropriate deference.
However, we differ slightly in how to treat the account. In the decree dissolving the marriage between Nikay and Chelsea's father, Chelsea received the sum of $9,000. It appears that during Nikay and Daniel's marriage, only half of this amount was placed in Chelsea's account. On appeal, Daniel does not dispute this. The parties should therefore restore to Chelsea's savings account the sum of $4,500 and we modify the decree to require this. Thus, we modify the decree to order that the CD held in Jacob's name at the time of trial shall be divided as follows: $13,300 shall be placed in Chelsea's savings account; Daniel shall receive $18,416; and the remainder shall be the property of Nikay. Because the record does not disclose whether the vehicle purchased for Chelsea's use with funds from her savings account is titled in the name of Nikay or Chelsea, we intentionally make no disposition of that asset.
B. Proceeds from Sale of Nikay's Premarital Home.
Shortly following the parties' marriage, Nikay sold her premarital home, netting proceeds of $22,358.16. These funds were deposited in the parties' joint checking account. While the district court noted the house sale in its decree, it made no express mention of it in the analysis of the property distribution. On appeal, Nikay asserts she should be awarded an equalization payment in the amount of $11,179.08 from Dan.
We conclude equity requires that Nikay receive some credit for proceeds she received from the sale of her premarital home and which she indisputably brought into the marriage. The record shows that shortly after the sale proceeds were deposited in the parties' joint checking account, payments of $8,381.69, $6,145.07, and $2,315.67 were made on Daniel's Discover Card, his Visa card, and his vehicle loan. Nikay admitted that although these credit card debts were on Daniel's cards, at least some of them were incurred to make home repairs. We conclude that an equitable division of the parties' property requires Daniel to pay Nikay the sum of $9,579.05 representing one-half of the payments made on Daniel's credit cards ($7,263.38), and the full amount paid on his Jeep loan ($2,315.67) from Nikay's house sale proceeds.
V. Alimony.
The district court required Daniel to pay Nikay rehabilitative alimony of $500 per month for twenty-four months. Nikay now argues this award should be made permanent. Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Eastman, 538 N.W.2d 874, 876 (Iowa Ct.App. 1995). In determining whether an alimony award is appropriate, the court considers the factors listed in Iowa Code section 598.21(3) (2003). In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996).
In view of Daniel's earning capacity and Nikay's disability, we believe an award of traditional alimony is more appropriate than rehabilitative alimony. See In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997) (stating traditional or permanent alimony usually payable for so long as spouse is incapable of self-support). The Social Security Administration has determined Nikay "is under a disability" and that her impairment is "severe." Moreover it determined she "does not have transferable skills to perform other work within her physical and mental residual functional capacity." Although we recognize the Social Security Administration's finding of NiKay's disability is certainly not conclusive in this proceeding, we conclude it is entitled to some evidentiary weight. We note there is no medical evidence in the record to refute either the diagnosis of Nikay's deep vein thrombosis or the Social Security Administration's resulting determination of disability. We therefore disagree with the district court's finding that a two-year rehabilitative alimony award would "allow [her] to actively seek training for employment that would be appropriate for her physical condition." See In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989) (stating rehabilitative alimony provides means of support for economically dependent spouse through limited period of education or retraining). Accordingly, we modify the decree to award Nikay traditional alimony in the amount of $300 per month until Nikay either remarries or reaches the age of sixty-five, or becomes physically capable of self-support.
VI. Attorney Fees.
The district court ordered that each party would be responsible for their own attorney fees. On appeal, Nikay maintains the court should have ordered Daniel to pay eighty percent of her attorney fees. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). Upon consideration of Nikay's limited earnings potential and Daniel's current ability to pay, we conclude Daniel should pay $1000 toward Nikay's trial attorney fees.
Both parties request an award of attorney fees on appeal. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We decline to award attorney fees on appeal. Costs of this appeal are assessed to Daniel.