IN RE THE MARRIAGE OF PENNY J. WOSEPKA AND MARK A. WOSEPKA Upon the Petition of PENNY J. WOSEPKA Petitioner-Appellant, And Concerning MARK A. WOSEPKA Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-836 / 08-0292
Filed December 17, 2008
IN RE THE MARRIAGE OF PENNY J. WOSEPKA AND MARK A. WOSEPKA
Upon the Petition of
PENNY J. WOSEPKA
Petitioner-Appellant,
And Concerning
MARK A. WOSEPKA
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Butler County, John S. Mackey,
Judge.
Petitioner appeals the physical care, property division, and attorney fee
provisions of the decree dissolving the parties’ marriage. AFFIRMED IN PART
AND REMANDED IN PART.
Gary Boveia of Boveia Law Firm, Waverly, for appellant.
Teresa Rastrede and Curtis Klatt of Dunakey & Klatt, P.C., Waterloo, for
appellee.
Heard by Vogel, P.J., and Miller, J. and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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MILLER, J.
I.
Background Facts & Proceedings
Mark and Penny Wosepka were married in 1997. They have two children,
Karlie, born in 1998, and Kelsie, born in 2002. On September 26, 2006, Penny
filed a petition for dissolution of marriage.1
At the time of the dissolution hearing, in September 2007, Penny was
forty-two years old. Penny was formerly married to Daniel Cox, and has a son,
Khyle, with him. At the time of the marriage Penny was working at a bank as an
assistant to a mortgage loan officer.
In 1999 she began working for CUNA
Mutual Life Insurance Company, and is now a transfer analyst. Her annual gross
income from CUNA is $35,582. Penny has also been a licensed real estate
agent. She has some residual health problems due to a previous personal injury
accident in 2004.
Mark was also forty-two years old. Mark has a degree from a community
college.
In 1997, he began working for Deere & Company as a machinist.
During the marriage he worked the third shift, from 11:00 p.m. until 7:00 a.m. He
stated that due to his seniority he believed he could change to the first shift, from
7:00 a.m. until 3:00 p.m.
Mark’s gross annual income from John Deere is
$59,647. Mark has no health problems.
1
We note that the notice of appeal in this case was captioned Wosepka v. Wosepka.
Iowa Code section 598.4 (2005) specifically sets forth the format for the caption in
dissolution of marriage cases, and we have put the correct caption on this case. We
believe the provisions of section 598.4 should be followed in an appeal of a dissolution
action, so the caption clearly shows the action is a dissolution proceeding.
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In 2002, Mark inherited from his grandfather a four-plex apartment worth
$50,000; lots worth $76,800; 2.25 acres worth $15,750; farm equipment worth
$3500; and two trailers worth $2000. In addition, Mark purchased thirty acres
from his sister which was worth $66,000. In 2006, he purchased a 200-acre farm
from his mother, Barbara, for $200,000. Mark created Crown Point Investments,
L.L.C., to hold his inherited property, and he is the sole member-manager. Mark
earns $26,900 per year in income from his property.
The district court entered a dissolution decree for the parties on November
8, 2007. The court granted the parties joint legal custody of the children, with
Mark having physical care. Penny was granted visitation, and ordered to pay
child support of $571.38 per month. The court set aside to Mark $348,050 in
inherited property and gifts.
This amount included a gift of $150,000 from
Barbara based on a finding that she sold him the 200 acre farm for $150,000 less
than the actual value of the property. The court divided the remaining marital
property to award Penny a net amount of $234,164 (which included the marital
residence), and Mark a net amount of $193,769. The court did not award any
attorney fees.
The court entered a no-contact ordered between Penny’s ex-
husband, Daniel, and the children.
Penny filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).
The court reiterated that the purchase of 200 acres from Barbara included a gift
of $150,000. The court concluded Penny’s personal injury proceeds had been
counted twice, and adjusted the net amount of property awarded to her to
$214,306. The court increased Penny’s visitation with the children. Penny then
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filed a second motion pursuant to rule 1.904(2), stating that because her
visitation time had increased her child support obligation should be decreased.
The court agreed and decreased her child support obligation to $457.10 per
month. Penny now appeals.
II.
Standard of Review
Our review in this equitable action is de novo. Iowa R. App. P. 6.4. When
considering the credibility of witnesses, we give weight to the factual findings of
the district court, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
III.
Physical Care
Penny contends the district court should have granted her physical care of
the parties’ two children. She asserts she was the children’s primary caretaker
during the marriage. She claims Mark was not as involved with the children, and
he undermined her attempts to discipline the children. She states Mark did not
support her decision to have Karlie meet with Stephanie Schwinn, a clinical
social worker, to address discipline problems. She points out that her employer
permits a flexible work schedule so she is able to meet the children’s needs.
Additionally, Penny claims the court placed too much emphasis on her
relationship with her ex-husband and the fact he was facing sexual abuse
charges.
The primary consideration in a physical care determination is the best
interests of the children. Iowa R. App. P. 6.14(6)(o); In re Marriage of Hansen,
733 N.W.2d 683, 697 (Iowa 1999). We consider the factors found in Iowa Code
section 598.41(3) (Supp. 2005). We consider which parent will be more likely to
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bring the children to healthy physical, mental, and social maturity. In re Marriage
of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
We first note that the district court specifically found Mark was more
credible than Penny. Mark testified he and Penny shared in child-care duties.
He testified he often stayed home with the children while Penny engaged in
social activities outside the home. Penny also testified Mark “enjoyed staying
home doing nothing.”
She testified Mark had a very strong bond with the
children. There was evidence that Penny often had discipline problems with
Karlie, but Karlie was more compliant when interacting with Mark.
Furthermore, there was evidence Penny did not always include Mark in
her decisions regarding the children. Penny placed Karlie in counseling with
Schwinn without informing Mark. Regarding Penny’s previous relationship with
Daniel, Penny’s sister testified Penny did not always tell Daniel about Khyle’s
activities.
At the time of the dissolution hearing, Daniel was facing sexual abuse
charges in two separate counties.2 Mark’s sister testified that in 1999 or 2000
Daniel got into an argument with Penny and pushed her down to the ground, and
then threatened to kill Karlie. Penny testified she had telephone contact with
Daniel about four or five times a week and these contacts were about Khyle, who
was then living with Daniel. Penny stated Khyle told her the charges against
Daniel were false. Penny stated she believed her son and thought Daniel was
“no threat at all in regards to what’s being said.” Penny believed the children
2
Prior to Penny’s first post-trial motion Daniel was acquitted of the charges against him
in Jasper County. He was still facing charges in Bremer County.
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could attend Khyle’s wrestling meets, even though she knew Daniel would be
present. She agreed, however, to the order keeping Daniel from having contact
with Karlie and Kelsie.
On the issue of physical care, the district court determined:
The court further concludes that Mark is better able to minister to
the long-range best interests of the children as reflected by his
credible testimony in contrast to that of Penny.
Penny’s
minimization of her continuing contact with Mr. Cox is of grave
concern to the court given his prior physical abuse of Penny and his
threatening to kill Karlie in addition to the present criminal charges
he now faces.
We agree with the court’s conclusions on this issue. We find both Penny
and Mark provided care for the children during the marriage.
Penny’s past
conduct raises concerns about whether she would include Mark in decisions
regarding the children. Penny’s testimony showed she did not consider Daniel a
threat. In addition, the evidence shows Mark is more prepared to devote himself
to the care of the children. Considering all of these factors, we affirm the district
court’s decision placing the children in the physical care of Mark.
IV.
Gift of $150,000
Penny claims the evidence does not support a finding that Barbara made
a gift of $150,000 to Mark by selling the 200 acre farm to him for $200,000 in
2006. She states there is no evidence of the value of the farm in 2006. She
points out Barbara did not file a gift tax return.
She also points out that in
answering interrogatories Mark did not mention the $150,000 gift.
Section 598.21(6) provides:
Property inherited by either party or gifts received by either
party prior to or during the course of the marriage is the property of
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that party and is not subject to a property division under this section
except upon a finding that refusal to divide the property is
inequitable to the other party or to the children of the marriage.
Barbara testified that at the time of the sale of the farm she was aware
that the fair market value of the farm was more than the sale price. She stated
the farm had been in her family since 1884. Barbara stated she had inherited the
farm from her parents, and her father had wanted Mark to have the farm. She
noted Mark had farmed with her father, and he was the only one of her children
who was interested in the farm. Barbara testified the difference in value between
the sale price and the fair market value was about $150,000 to $160,000.
Barbara considered the difference in price to be a gift to her son alone, and not to
his family. Mark also testified that the difference between the fair market value of
the farmland and the sale price was a gift from his mother.
The owner of property is competent to testify to the market value of the
property. Hansen, 733 N.W.2d at 703. Thus, Barbara’s testimony about the
market value of the property at the time of the sale was competent evidence to
support the district court’s valuation. The district court determined the value of
the property at the time of the sale was $150,000 more than the sale price.
“Although our review is de novo, we ordinarily defer to the trial court when
valuations are accompanied by supporting credibility findings or corroborating
evidence.” Id. In this case the district court’s valuation was accompanied by a
credibility finding: “While Mark and his mother appear fairly quiet and reserved,
the court finds their testimony to be more credible than that of Penny.”
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Therefore, we defer to the court’s valuation of the 200 acres of farmland Mark
purchased from his mother.
We affirm the district court’s decision finding Barbara made a gift of
$150,000 to Mark at the time of the sale of the farmland, and setting this amount
aside to Mark as gifted property under section 598.21(6).
V.
Real Estate Description
Penny was awarded the marital residence. The district court gave the
legal description of the property as:
A tract commencing at the Northwest Corner of Lot 2,
Subdivision of the Southeast Quarter of the Northwest Quarter of
Section 12, Township 91 North, Range 15 West of the 5th P.M.,
thence west 33 feet to point of beginning, thence south 323.4 feet,
thence east 150 feet, thence north 323.4 feet, thence west 150 feet
to beginning.
(Emphasis added).
Both parties agree this legal description is incorrect, and that the
emphasized word should be “east” not “west.” Penny further asserts that the
legal description is incorrect because the property lines established by the legal
description run through a garden shed located only a few feet from the home, cut
off and exclude a portion of the fenced-in yard connected to the home, and
exclude and deny access to the driveway by which leads to the home. She
claims the legal description is thus inconsistent with the parties’ use of the
property.
Penny also asserts the appraised value of the property, and the
valuation set by the district court, do not comport with the legal description. Mark
does not disagree with Penny’s assertions concerning the garden shed, fencedin yard, and driveway, but resists Penny’s request that the issue be remanded to
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the trial court “to conduct a survey . . ., generate an accurate legal description . . .
represent[ing] the Wosepkas’ prior use of the . . . property, and then re-award
Penny the then appropriately described [property].”
We determine this issue must be remanded for the district court to conduct
an evidentiary hearing on the issue of the extent of the property to be awarded to
Penny as the marital residence, and for the court to then determine, based on the
evidence presented at the original trial and any additional evidence presented
following remand, the correct legal description of the property to be awarded to
her. We do not retain jurisdiction.
VI.
Attorney Fees
A.
Penny asserts the district court abused its discretion by not
awarding her trial 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). We find no abuse of discretion in the district court’s determination that
each party should pay their own trial attorney fees.
B.
Penny also seeks attorney fees for this appeal.
An award of
appellate attorney fees is not a matter of right, but rests within our discretion. In
re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We consider
the needs of the party making the request, the ability of the other party to pay,
and the relative merits of the appeal. In re Marriage of Sullins, 715 N.W.2d 242,
255 (Iowa 2006). We determine each party should pay his or her own appellate
attorney fees.
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VII.
Conclusion
We affirm the district court on all issues presented in this appeal, except
that we remand to the district court for a determination of the extent of the
property awarded to Penny as the marital residence, and the correct legal
description of that property. Costs of this appeal are assessed three-fourths to
Penny and one-fourth to Mark.
AFFIRMED IN PART AND REMANDED IN PART.
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