Opinion
No. 5-293 / 04-1587
Filed September 28, 2005
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Paul Zylstra appeals from the custody, alimony and medical provisions of the parties' dissolution decree. AFFIRMED.
Paul Zylstra, Bussey, appellant pro se.
Joseph Bitter of Bitter Law Offices, Dubuque, for appellee.
Considered by Mahan, P.J., and Zimmer, J., and Beeghly, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Paul Zylstra appeals from the provisions of the decree dissolving his marriage to Lynne Zylstra. He contends the district court erred in granting physical care of the parties' minor children to Lynne in lieu of shared physical care. He further contends the court awarded Lynne excessive alimony. Paul also raises several other issues. We affirm.
I. Background Facts Proceedings
Petitioner, Lynne Zylstra, was born April 1952. Respondent, Paul Zylstra, was born December 1951. The parties were married at Bussey, Marion County, Iowa on December 1971. Nine children were born of the marriage. At the time of trial, five of the children were over eighteen years of age. The four minor children are Abigail, born October 1986; Amanda, born January 1990; Andrew, born August 1993; and Laura, born September 1996.
The parties met while students at Iowa State University. When they married, Lynne dropped out of school. She has not worked outside the home. Until the parties separated in 2003, she provided home schooling to the children. After the parties separated, Lynne enrolled the children in a parochial school in Galena, Illinois. She enrolled in a two-year nursing program at Northeast Iowa Community College. She intends to obtain a bachelors degree in nursing at Clarke College after completing the community college program. It is expected that she will complete the degree and be employed within five years of the trial date.
Paul has bachelor of science and master of science degrees in electrical engineering. He held employment with seven companies in seven cities in Nebraska, Kansas, Montana, and Iowa, from 1978 until 1997. Since early 1997, he has been self-employed as an electrical engineering consultant. His has experience in machine automation, process controls, energy efficiency design, electronics design, building electrical design, and electrical power transmission and distribution. Though his income varies, the trial court found that a reasonable annual average of his ability to earn is $57,500.00.
The parties desire to have the children continue their education at Tri-State Christian School in Galena, Illinois. Paul has been paying tuition of $13,600 per year. Lynne asked the trial court to order Paul to continue to provide tuition. The court denied her request.
The trial court observed:
[Paul] has a long history of erratic outbursts of temper in regard to the children. He has a long history of brutally excessive discipline, both physically and psychological. In the early years of the marriage he used his hands to punish the children. He then found God and has used various implements ever since. He offers little apology for his behavior. From his viewpoint, it is discipline mandated by God and he offers Bible verses to justify his conduct. He has no insight into the impact of his brutality on the children.
In April 2003, Lynne left the family home in Wall Lake, Iowa, taking the four minor children with her. She moved to Dubuque where she obtained protection and support from a women's shelter, enrolled the children in a private Christian school, and enrolled herself in a nursing program. She filed for dissolution of marriage on November 10, 2003.
Following a trial, the court entered a decree granting Lynne primary care of the minor children, awarding rehabilitative and traditional alimony to Lynne, and requiring Paul to provide medical insurance for the children.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Denial of Shared Physical Care
Paul contends there was insufficient evidence for the trial court to conclude that he was an abusive father, and that the court neglected to accommodate his sincerely held religious beliefs regarding corporal punishment. He asserts that the court denied shared physical care based on its predisposition against corporal punishment and not on the basis of law.
A review of the record fails to disclose a predisposition of the trial court against corporal punishment. However, the record does reveal a plethora of evidence from which the court could, and did, find a pattern of abusive behavior by Paul toward his children.
The trial court's findings are strongly supported by evidence that Paul's disciplinary actions far exceeded appropriate bounds of corporal punishment. Paul considers himself to be a devout fundamentalist Christian. His ideas about socialization of children, child rearing, and family relationships are based on his understanding of biblical scripture and Christian principles. Discipline of his children has been extremely physically and emotionally abusive. Paul admits that he has required his children to stand with their nose in a corner for as long as eight hours. He struck the children with a dowel stick or arrow shaft continuously for as long as an hour, leaving welts and bruises on their legs, buttocks and back. He required their siblings to apply vitamin E lotion to the wounds to minimize swelling and discoloration. He caused his children to fear and distrust police, social workers, and teachers. He admits that his discipline was more severe and inappropriate before he was "saved."
Lynne and the children avoided developing friendships even when Paul was gone on business trips for as long as a month for fear of repercussion after his return. Paul required Lynne to home school the children for twenty years, thus avoiding detection of his abuse.
The record supports the court's findings and conclusion that shared physical care is not appropriate in this case in light of the respondent's abusive behavior toward his children and his continued justification of his conduct.
IV. Excessive Alimony
Paul asserts that the alimony award of $1,250.00 per month for five years and $500.00 per month until Lynne is sixty-six years old, or until she remarries or either party dies, is excessive. In considering the parties' education, earning capacity, employment histories, standard of living, Paul's ability to pay compared to Lynne's relative need, and other economic factors, as well as the assets and debts of the parties, the alimony award is reasonable. See Iowa Code § 598.21A(1) (2003). See also In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997) (outlining the factors considered in determining the appropriateness of an award of alimony). Though Paul will be burdened with alimony payments, especially for the first five years, he has been able to commit a comparable sum for his children's tuition to private school, a matter of choice. It appears that the trial court has given consideration to the appropriate factors in making this alimony award and has applied the factors equitably.
V. Other Issues
Paul has raised several other issues.
He states that he should not be required to pay one hundred percent of all added medical expenses since it can lead to abuse. This court is unable to find any provision in the decree that would impose this requirement. It may be that the requirement is in the child support case, which is not involved in this appeal. In any event, there is no evidence that Lynne would engage in punitive conduct or unnecessarily incur medical expenses for any other reason. This issue is only a matter of speculation and this court will not rule on this request.
In his brief, Paul seeks to put additional evidence before the court. He also seeks to present additional evidence in his reply brief. We do not consider issues based on information outside the record made at trial. Rassmussen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct.App. 1994).
Paul states five additional issues in his reply brief. All five "issues" are commentaries on the evidence and are in the nature of argument. To the extent that they bear on issues decided by the court above, these matter have been considered. To the extent that they are new issues raised in the reply brief, they are not timely. An issue raised for the first time in a reply brief is not properly presented to the court. Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996).
Lynne requests an award of her appellate attorney fees. Appellate attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). In determining whether to award appellate attorney fees, the reviewing court considers the need of the party making the request, the ability of the party to pay, and whether that party making the request was obligated to defend the district court's decision on appeal. Id. Based on the record, we award Lynne $1000 in appellate attorney fees.
Upon our de novo review of the record, and giving due deference to the district court's assessments of the evidence, we affirm the court's decree in all respects challenged by Appellant.