Opinion
No. 1-1038 / 01-0103.
Filed March 13, 2002.
Appeal from the Iowa District Court for Dubuque County, ROBERT J. CURNAN, Judge.
Randall Horsman appeals the visitation and property division provisions of a dissolution decree . AFFIRMED AS MODIFIED.
Russel Neuwoehner of Lange and Neuwoehner, Dubuque, for appellant.
Mary Schumacher, Dubuque, for appellee.
Considered by SACKETT, C.J., and ZIMMER, and VAITHESWARAN, JJ.
Randall Horsman, Sr. appeals from the visitation and property distribution provisions of the parties' dissolution decree. He also claims the trial court should not have taken judicial notice of a trial information filed against him in connection with an incident which occurred just before trial. We affirm as modified.
I. BACKGROUND FACTS AND PROCEEDINGS .
Randall and Carrie Horsman were married in 1992. The parties have three children: Randall, born in March 1994; Carly, born in November 1996; and Wade, born in July 1998. Randall is forty-one years of age and Carrie is thirty-one.
The parties separated in February of 2000, and Carrie filed a petition to dissolve their marriage. Because they were unable to reach agreement concerning Randall's visitation and the division of their property and debts, their case was tried to the court in November 2000. At the time of trial, Randall was in jail because of pending criminal charges.
Following trial, the district court awarded custody of the parties' children to Carrie. The court granted Randall no visitation rights other than those Carrie voluntarily made available to him. Randall was ordered to pay child support of $100 per month. The court awarded Carrie the bulk of the parties' marital assets. In lieu of a cash distribution from Carrie, Randall was given a credit of $12,000 against his future child support obligation.
Randall appeals. He contends the trial court should have awarded him visitation rights with his minor children subject to restrictions. He also contends the court's division of marital assets was inequitable. Finally, he contends the trial court improperly considered the minutes of testimony contained in a criminal file that detailed charges filed against him arising out of an incident that occurred November 2, 2000.
II. SCOPE OF REVIEW .
Our review of this equitable matter is de novo. See Iowa R. App. P. 6.4. This standard requires us to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ruter, 564 N.W.2d 849, 851 (Iowa Ct. App. 1997). We recognize the value of listening to and observing the parties and their witnesses. See Iowa R. App. P. 6.14(6)(g). 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." In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996).
Formerly Iowa R. App. P. 4.
Formerly Iowa R. App. P. 14(f)(7).
III. VISITATION .
In its decree the trial court ordered that, "respondent is granted no visitation rights other than what petitioner voluntarily makes available to him." Randall argues the court should have found he was entitled to reasonable visitation rights with the children, subject to appropriate restrictions, including supervision of any visitation ordered.
In establishing visitation rights, our governing consideration is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct. App. 1992). Generally, liberal visitation rights are in the children's best interests. Id. Iowa Code section 598.41(1) provides 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 . . .
Iowa Code § 598.41(1)(a). Unless visitation with the noncustodial parent will in some way injure the child, it is not to be prohibited. In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct. App. 1991). When dealing with visitation issues, prior cases have little precedential value and we must base our decision primarily on the particular circumstances of the parties before us. In re Petition of Holub, 584 N.W.2d 731, 732 (Iowa Ct. App. 1998).
Upon de novo review of the record, we find the district court's visitation order should be affirmed. In October of 1999, Randall was involved in a car accident while driving under the influence of alcohol with one of his children in the car. Shortly thereafter, the parties separated, reconciled briefly, and then separated again in February of 2000. The February separation occurred after Carrie became aware Randall had sexually abused her younger sister years earlier. As a result of the October 1999 accident, Randall pled guilty to neglect of a dependent person and operating a motor vehicle while intoxicated as a second offender. In May of 2000, he was sentenced for his criminal offenses and placed on probation.
In June of 2000, Randall was involved in another car accident involving alcohol. Randall told Carrie this accident was actually a suicide attempt. As a result of this incident, he pled guilty to operating while intoxicated as a third offender and was awaiting sentencing for that offense at the time of trial. An application to revoke the suspended sentences Randall received for his prior offenses of operating a motor vehicle while intoxicated as a second offender and child endangerment was also pending when the parties' case was tried.
During the period from October of 1999 until November 2000 it is fair to say that Randall's life was spiraling out of control. He attempted suicide four times and was also hospitalized for mental health treatment on several occasions. Randall was unemployed throughout the year 2000.
Just prior to the parties' dissolution trial, Randall was charged with going armed with intent, assault while participating in a felony, domestic abuse assault by use or display of a dangerous weapon, willful injury, operating while intoxicated or drugged while being a third or subsequent offender, and driving under revocation. Peggy Dylan, the alleged victim, testified she lived with Randall until a few days prior to trial. She further testified she and Randall got into an argument and that he came after her with a knife and she was cut. The trial court was able to observe cuts on the victim's hand and a mark on her forehead. Randall was incarcerated at the time of trial as a result of the incident involving Peggy Dylan.
During trial, Carrie testified she was living with her parents instead of in the family home because she was afraid to be in her home alone with the children. Her fear stemmed from past threats by Randall. She testified that Randall had physically hurt her in the past by kicking, punching and choking her.
We conclude the district court's decision to deny Randall visitation rights, other than those Carrie voluntarily made available to him, was reasonable based on the circumstances existing at the time of trial. In the thirteen-month period prior to trial, Randall's erratic behavior posed a very real threat to the safety of his children and others. At the time the court entered its decree, any contact by Randall with the children was likely to be detrimental rather than beneficial to them. As the trial court noted, the visitation order can be modified if Randall's circumstances change.
IV. THE PROPERTY DIVISION .
The trial court purposefully awarded Carrie the bulk of the marital assets and debts. The record indicates Carrie would need to pay Randall approximately $14,300 to equalize the property distribution. The trial court decided against ordering Carrie to make a cash equalization payment to Randall. Instead, it gave Randall a credit of $12,000 against his future child support obligation. According to the court's decree, this sum represented Randall's "portion of the parties' assets after deduction of indebtedness that the court determines to be equitable under all the circumstances."
Randall contends the court's distribution of the net assets of the parties was inequitable. He argues it was not appropriate for the trial court to order a credit against his future child support obligation in the absence of an agreement between the parties. He contends the effect of the court's decree is to require him to prepay his child support obligation for the next ten years. Carrie contends the district court's allocation of assets and debts is equitable taking into account her premarital property, the assets she accumulated during the parties' separation, the debts Randall accumulated during the parties' separation, Randall's destruction of a pickup truck, and the credit Randall received against his child support obligation.
In general, Iowa courts do not require equal division of property in dissolution of marriage cases. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). Although an equal division is not always necessary, it should nevertheless be a general goal of trial courts to make the division of property approximately equal. In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979). The determining factor is what is fair and equitable in each circumstance. Russell, 473 N.W.2d at 246. An equitable distribution of the parties' property must be made according to the criteria set forth in Iowa Code section 598.21(1). In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000). Dissipation or waste of marital assets by a spouse prior to dissolution may by considered in making an equitable property distribution. In re Marriage of Burgess, 568 N.W.2d 827, 828 (Iowa Ct. App. 1997). Domestic abuse is not a factor to be considered in the division of property in a dissolution action. Goodwin, 606 N.W.2d at 324. We base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Riddle, 500 N.W.2d 718, 719 (Iowa Ct. App. 1993).
The record reveals Randall brought no assets to the marriage. Although much younger than her spouse, Carrie brought approximately $2,000 in a 401(k) plan to the marriage. Randall was employed sporadically during the marriage. Because of physical, emotional, and substance abuse problems, he has not had significant employment since 1999. Carrie, on the other hand, has had stable employment throughout the marriage while serving as the primary caretaker for the parties' children during most of the marriage.
After the parties separated, Randall wrecked the family pickup resulting in the vehicle having no value. In addition he accumulated significant credit card debt and incurred a number of economic sanctions as a result of criminal offenses. Randall obviously has a serious and unresolved substance abuse problem. At the time this case was tried, Randall was unemployed, incarcerated, and facing serious criminal charges. He was not paying child support and had no means to contribute to the children's health insurance or uninsured medical expenses.
Based on the circumstances just described, we affirm the trial court's allocation of assets and debts with one modification. We conclude the trial court should not have required that the $12,000 property distribution to Randall be applied as a credit against his future child support obligation. Unlike property settlements, child support obligations are subject to future modification and in some cases elimination. We modify the parties' decree by eliminating the credit granted by the trial court against Randall's future child support obligation. We conclude Carrie should pay the $12,000 property distribution to Randall in annual installments of $1,200 without interest commencing June 30, 2002 and continuing until paid in full. Carrie shall receive a credit for any accrued but unpaid child support owed by Randall as each of her installments become due.
V. JUDICIAL NOTICE ISSUE .
Randall contends the district court erred in taking judicial notice of the minutes of testimony accompanying a trial information filed against him as a result of an incident which occurred a few days before trial. We agree with Randall's contention that the minutes of testimony attached to a criminal trial information are not evidence and, unless admitted to by the defendant, are subject to reasonable dispute. The record suggests the trial court read the minutes of testimony. It is not clear, however, that the trial court accepted the minutes as true and relied on them in rendering its decision. Furthermore, even if the court did consider the minutes of testimony in reaching its decision, our de novo scope of review renders this issue moot.
VI. CONCLUSION .
We affirm the visitation order entered by the district court. We affirm the trial court's allocation of assets and debts as modified.
AFFIRMED AS MODIFIED.