IN RE THE MARRIAGE OF STEVE R. NEWLANDER AND CYNTHIA A. NEWLANDER Upon the Petition of STEVE R. NEWLANDER, Petitioner-Appellant, And Concerning CYNTHIA A. NEWLANDER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-785 / 06-0115
Filed November 16, 2006
IN RE THE MARRIAGE OF STEVE R. NEWLANDER
AND CYNTHIA A. NEWLANDER
Upon the Petition of
STEVE R. NEWLANDER,
Petitioner-Appellant,
And Concerning
CYNTHIA A. NEWLANDER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
Steve Newlander appeals from the decree dissolving his marriage to
Cynthia Newlander. AFFIRMED.
Thomas J. Jackowski of Jackowski & Graves, Clive, for appellant.
Carmen E. Eichmann, Des Moines, for appellee.
Heard by Huitink, P.J., and Vogel, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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VOGEL J.
Steve Newlander appeals from the child custody and property distribution
portions of the decree dissolving his marriage to Cindy Newlander. Upon our de
novo review, we conclude the court properly allocated the physical care of the
parties’ children to Cindy and equitably distributed the assets and debts of the
marriage. We therefore affirm.
Background Facts and Proceedings.
Steve and Cindy were married in 1991 in Las Vegas and two children
were born during the marriage, Ethan in 1992 and Lara in 1996. Cindy brought
assets into the marriage including a residence, a savings account, and a vehicle,
while Steve only brought limited personal property and a vehicle. Steve was
employed at the Nevada Power Company until 2000. During that employment,
Steve returned to school and received his master’s degree in business
administration. Cindy held a bachelor’s degree in accounting and was employed
at Rainbow Tax Service where she worked limited hours during the off-season,
but during tax season her hours would substantially increase. Due to Cindy’s
work schedule, she was able to spend a great deal of time with the children. In
August of 2003, the family moved to Iowa in order for Steve to attend law school.
During the marriage, the parties led completely separate economic lives.
They never shared a bank account or commingled assets but alternated making
payments on the mortgage, and sharing the various household bills. Each paid
for their own personal expenses and maintained separate credit card accounts.
While in Las Vegas, Steve was involved in a serious automobile accident, for
which he received a net settlement of $167,000 in 1998.
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On May 20, 2004, Steve filed a petition seeking to dissolve his marriage to
Cindy. Following an extensive trial that included testimony from many individuals
and the presentation of multiple exhibits, the court entered a decree dissolving
the marriage. The court granted the parties joint legal custody of the children
and allocated their physical care to Cindy. In dividing the assets and debts of the
parties, the court awarded Cindy assets totaling $56,970 and Steve assets
totaling $78,056. Steve appeals. 1
Scope and Standards of Review.
Our review in this equity action is de novo. Iowa R. App. P. 6.4. We
examine the entire record and adjudicate rights anew on the issues properly
presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give
weight to the fact-findings of the trial court, especially when considering the
credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
This is because the trial court has a firsthand opportunity to hear the evidence
and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa
1992).
Physical Care.
On appeal, Steve maintains the court improperly allocated their children’s
physical care to Cindy.
The primary consideration in any physical care
determination is the best interests of the child. In re Marriage of Murphy, 592
1
We note the massive appendix presented to the court. We prompt appellant to comply
with Iowa Rule of Appellate Procedure 6.15(a), by including only relevant portions of the
record in the appendix, thereby reducing both printing expense and the burden on the
appellate courts in referencing points on appeal. See State v. Oppelt, 329 N.W.2d 17,
21 (Iowa 1983). We further caution counsel for both parties to comply with Iowa Rule of
Appellate Procedure 6.14(5)(b), which requires that a copy of any unpublished opinion
be attached to the brief.
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N.W.2d 681, 683 (Iowa 1999). In considering which physical care arrangement
is in the child’s best interest, we consider the factors set forth in Iowa Code
section 598.41(3) (2003), see In re Marriage of Will, 498 N.W.2d 394, 398 (Iowa
1992) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The
critical issue is which parent will do better in raising the child; gender is irrelevant,
and neither parent should have a greater burden than the other. In re Marriage
of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct. App. 1996). In determining which
parent better serves the child’s best interests, the objective is to place the child in
the environment most likely to bring him to healthy physical, mental, and social
maturity. Murphy, 592 N.W.2d at 683.
Steve takes great issue with the court’s credibility findings in the favor of
Cindy. On this topic, the court stated:
The court had serious concerns about Steven’s credibility at trial
due to the discrepancies regarding the proceeds of the automobile
collision settlement, the statements on his loan applications and his
inability to account for large sums of money at trial. The Court had
equally great concerns regarding Steven’s credibility regarding his
drinking problem . . . .
While Steve takes issue with many of the specific findings made, there is support
in the record for each, and we find no reason to depart from the district court’s
fact and credibility findings.
The record also indicates that throughout much of their married life, Cindy
provided the primary care for the children. Early on, Steve worked long hours
and was away from the home often for days at a time. Later he pursued his
master’s degree and most recently was a full time law student at Drake
University.
While advancing a career and pursuing educational goals is
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commendable, the practical impact was that Cindy, having a more flexible work
schedule, spent considerably more time with the children.
While her role of
primary caretaker is not determinative, we believe in this case it supports Cindy’s
request for physical care of the children. In re Marriage of Fennell, 485 N.W.2d
863, 865 (Iowa Ct. App. 1992) (“[C]onsideration is given in any custody dispute to
allowing the children to remain with a parent who has been a primary caretaker
so as to enable the children to have continuity in their lives.”).
Accordingly, upon our de novo review, we conclude the court properly
allocated the children’s physical care to Cindy. Both she and Steve are good
parents to their children, however, the evidence tips in favor of affirming the
district court’s ruling, granting Cindy the children’s physical care.
Property Distribution.
As noted above, in dividing the assets and debts of the parties, the court
awarded Cindy assets totaling $56,970 and Steve assets totaling $78,056. As
part of Steve’s assets, the Court included $56,563.33 which was the balance
indicated on a March 31, 2004 Vanguard account statement, a full eighteen
months prior to trial.
The court also allocated to each party various debts,
including the balance on the parties’ respective credit cards. The largest of those
debts, Steve’s student loans of $58,070 were allocated to him. On appeal, Steve
argues (1) the Vanguard account was no longer in existence at the time of trial,
October 11, 2005, and thus not subject to distribution, (2) the court should have
allocated to him a portion of the equity in the marital home, and (3) the court
erred in granting Cindy the proceeds of the parties’ 2001 tax refund.
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Iowa law requires that marital property be divided equitably between the
parties, considering the factors in Iowa Code section 598.21(1) (2005). The court
should divide the property of the parties at the time of divorce, except any
property excluded from the divisible estate as separate property, in an equitable
manner in light of the particular circumstances of the case. In re Marriage of
Schriner, 695 N.W.2d 493, 496 (Iowa 2005).
An equitable division is not
necessarily an equal division. In re Marriage of Anliker, 694 N.W.2d 535, 542
(Iowa 2005). A court may consider a party’s dissipation of assets when it makes
a property distribution. In re Marriage of Goodwin, 606 N.W.2d 315, 321 (Iowa
2000) (observing that “a spouse’s disposal of assets that would otherwise be
subject to division in the dissolution may properly be considered in making an
equitable distribution of the parties’ property”). We defer to the trial court when
valuations are accompanied with supporting credibility findings or corroborating
evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999).
Prior to dividing the assets and debts of the parties, the court found that by
as early as 2002 Steve had been maneuvering assets in anticipation of seeking a
divorce. It noted that among other actions, Steve had liquidated his retirement
accounts without informing Cindy. The court then traced a series of apparently
unexplained transfers and liquidations from various accounts which held sums
originally gained in Steve’s personal injury settlement. These transactions were
done without Cindy’s knowledge.
After analyzing these dealings, the court
indicated its belief that Steve “has put in place a plan to dissipate and/or secrete
assets away [from] Cindy since 2000.” In line with its assumption that Steve had
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“hidden” assets, the court found it equitable to attribute the value of the Vanguard
account to him as part of the distribution scheme.
Steve argues the Vanguard account and the funds which existed in March
2004 did not exist in October 2005, at the time of trial. He thus believes the court
improperly included this in his asset allocation.
While we recognize that
generally the value of the assets should be determined as of the date of trial,
there may be occasions when the trial date is not appropriate to determine
values. In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997).
This is because equitable distributions require flexibility and concrete rules of
distribution may frustrate the court's goal of obtaining equitable results. Id.
We also agree with Steve that the court cannot allocate a “phantom”
asset. However, the district court sifted through multiple financial exhibits before
making its property distribution. In addition to the specific findings as to the
dissipation of assets, there is a broader reason for the district court’s distribution
as it found,
Even if, despite all indications to the contrary, Steven has not
hidden assets from Cindy, the result remains fair and equitable.
Assuming no hidden assets, what Steven has done is to convert
marital property to increased earning capacity for himself. Given
the age of the children and the fact that Cindy is not seeking
alimony, she will receive minimal, if any, benefit from Steven’s
increased earning capacity.
We view the court’s property distribution as a recognition of the inequities of the
parties’ economic situations. Accordingly, we must conclude the court’s total
asset and debt allocation does equity between the parties and there is no cause
to disturb those portions of the decree.
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Attorney Fees.
Steve contends the court should have awarded him attorney fees at trial
and now seeks an award of appellate attorney fees. An award of attorney fees is
not a matter of right, but rests within the court’s discretion. In re Marriage of
Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). Based on the financial picture
presented, we conclude the court properly denied Steve’s request to assess his
attorney fees against Cindy and we deny his request for appellate attorney fees.
Costs on appeal are assessed to Steve.
AFFIRMED.
Robinson, S.J., concurs; Huitink, P.J., concurs specially.
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HUITINK, P.J. (concurring specially)
I concur in the result only.
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