IN RE THE MARRIAGE OF STACI R. NIENKARK AND ALAN L. NIENKARK Upon the Petition of STACI R. NIENKARK, Petitioner - Appellee/Cross - Appellant, And Concerning ALAN L. NIENKARK, Respondent - Appellant/Cross - Appellee,
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IN THE COURT OF APPEALS OF IOWA
No. 9-034 / 08-1294
Filed March 26, 2009
IN RE THE MARRIAGE OF STACI R. NIENKARK AND ALAN L. NIENKARK
Upon the Petition of
STACI R. NIENKARK,
Petitioner-Appellee/Cross-Appellant,
And Concerning
ALAN L. NIENKARK,
Respondent-Appellant/Cross-Appellee,
________________________________________________________________
Appeal from the Iowa District Court for Jackson County, C.H. Pelton,
Judge.
Respondent appeals the physical custody and property distribution
provisions of the decree dissolving his marriage to petitioner. AFFIRMED AS
MODIFIED.
Jamie A. Splinter of Splinter Law Office, and Denis D. Faber, Jr. of Faber
Law Office, Dubuque, for appellant.
Mark R. Lawson of Mark R. Lawson, P.C., Maquoketa, for appellee.
Heard by Sackett, C.J., and Potterfield and Mansfield, JJ.
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SACKETT, C.J.
Alan Nienkark appeals from the decree dissolving his marriage to Staci
Nienkark.
He contends (1) the district court should have provided for joint
physical care of the parties’ two children, and (2) the property division was not
equitable. Staci Nienkark cross-appeals contending the district court gave Alan
excessive visitation. We affirm as modified.
SCOPE OF REVIEW. Equity proceedings, such as issues that arise in
dissolution actions, are reviewed de novo on appeal. Iowa R. App. P. 6.4; see In
re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004).
BACKGROUND.
Staci, born in 1967, and Alan, born in 1956, were
married in 1998. The parties have two adopted children, a son born in 1998 and
a daughter born in 2002. The children first came to live with the couple as foster
children. The younger child was adopted in May of 2007, about a month before
Staci left the family home.
Staci has an eleventh grade education and at the time of the dissolution
had two jobs.
She worked from 7 a.m. to 3:30 p.m. five days a week in
manufacturing. The job at times required her to start work at 5 a.m. and work
Saturday mornings. She also worked as a waitress on Saturday night, going to
the restaurant at 3 p.m. and returning home about 10:30 p.m.
Alan graduated from high school, worked for the railroad and in 1977 took
over his family’s dairy farm operation. He is a dairy and grain farmer. He owns
no land of his own but leases three tracts of farmland. He lives on and farms a
160-acre tract which belongs to his mother. There is a barn on the property that
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generally houses between twenty-six and forty cows, which he milks in the
morning and evening. He shares milk revenues with his mother as rent for this
tract. He also is on a crop-share arrangement on an additional tract of 174 acres
belonging to his mother and a 240-acre tract owned by a neighbor. His schedule
is directed by a need to milk the dairy cows in the morning and evening. He also
raises row crops on some of the land and works one and a half days a week at
the local sale barn.
The parties separated in the summer of 2007 and since September of that
year have been exercising shared care of the children on an agreed upon weekto-week schedule. The children’s adoptions were subsidized and the parties
receive medical care for the children and $500 a month from the Iowa
Department of Human Services for each child. They have been sharing that
subsidy.
The parties resolved certain issues and submitted others to the district
court. They agreed to have joint custody of the children. Staci sought primary
physical care while Alan wanted joint physical care. The parties also disagreed
on certain financial issues.
CUSTODY. The district court found both parties fine parents who love
their children, and who have the capacity and interest to provide for all of the
children’s essential needs. The court found them to have different strengths and
weaknesses.
The court found they lived in a relatively close geographic
proximity and that they both recognize the other parent’s relationship with the
children is important and that the children will suffer if they do not have regular
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contact with both parents. The court found Staci was the long-term primary care
giver and to continue this was to provide the most stability and continuity. The
district court placed the children in the parties’ joint custody and granted Staci
physical care.
Alan was given visitation every week starting when school
dismisses on Friday and continuing until 10 a.m. on Sunday. In addition Alan
was given visitation on his birthday, Father’s Day, and rotating holidays, including
New Year’s Day, Easter, Memorial Day, Fourth of July, Labor Day, Thanksgiving,
Christmas Eve, Christmas, and New Year’s Eve. Alan received visitation on the
children’s birthdays in odd numbered years and Staci in even numbered years.
Alan was also to have visitation during the first half of the school’s spring and
winter breaks in odd numbered years and the second half of the breaks in even
numbered years. He was to have visitation for two two-week intervals during
summer break.
Alan contends the parties should have joint physical care. Staci contends
the custody determination made by the district court should be affirmed but Alan
should have less visitation, and his visits should be every other weekend and one
overnight visit a week.
When considering issues of child custody we give weight to the fact
findings of the district 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). Prior
cases have little precedential value with respect to custodial issues, and this
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court must make its decision on the particular circumstances unique to each
case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct. App. 1995).
Joint physical care is a relatively new concept. See In re Marriage of
Hansen, 733 N.W.2d 683, 690-92 (Iowa 2007) (discussing at length its history in
Iowa). Joint physical care should not be granted if it is not in the best interest of
the child or children. See Iowa Code § 598.41(5)(a) (2007).1 Physical care
issues are not to be resolved based upon perceived fairness to the spouses, but
primarily upon what is best for the child. Hansen, 733 N.W.2d at 695. The
objective of a physical care determination is to place the children in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity. Id. at 695-96; Phillips v. Davis-Spurling, 541 N.W.2d 846, 847
(Iowa 1995); In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App.
1996).
The district court found that granting primary care to Staci was in the best
interest of the children but did not make a specific finding that awarding the
parties joint physical care was not in the best interest of the children.2 The court
specifically found:
1
Iowa Code section 598.41(5) provides in relevant part:
If joint legal custody is awarded to both parents, the court may award joint
physical care to both joint custodial parents upon the request of either
parent. . . . If the court denies the request for joint physical care, the
determination shall be accompanied by specific findings of fact and
conclusions of law that the awarding of joint physical care is not in the
best interest of the child.
(Emphasis supplied.)
2
The question the legislature has directed the court specifically to answer is whether
joint physical care is not in the children’s best interest. Iowa Code § 598.41(5)(a).
However, the court in In re Marriage of Hansen, 733 N.W.2d at 695-99, appears to
indicate courts should apply the best interest test.
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In further determining the best interest of the children as
between two suitable parents, the court finds that Staci’s long-term
primary care giving of the children if continued is more likely to
provide them the most stability and continuity. Staci and Alan have
lost mutual respect for each other.
...
Thus, the court finds that it is in the children’s long-term best
interest to be placed in the parties’ joint custody and in Staci’s
physical care for all of the reasons above described.
The test to determine which parent should have primary physical care is
similar to but different than making a determination of whether joint care is not in
the child’s best interest. In making a determination of whether there should be
joint care we are not weighing the qualities of one parent against the other to
determine who is better. We assess instead the positive and negative factors of
each parent and the relationship they have with each other and the time they
have spent with the children. We then focus on what is better or best for the
children.
See Hansen, 733 N.W.2d at 696-700 (listing factors to consider,
including among other things, each parent’s ability to be a caregiver, to
communicate with the other, and susceptibility to conflict). In doing so, we try to
determine how their combined presence in the children’s lives will affect the
children’s well-being and whether the children will be better with their parents
equally sharing their care or if it is in their interest to spend more time in one
parent’s custody than the other. See id.; Iowa Code § 598.41(5)(a) (stating that
the court, prior to awarding joint physical care, may require the parents to submit
a joint parenting plan addressing how they will make decisions that affect the
child and how the parents plan to handle disagreements that affect the child).
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The district court specifically found (1) both Alan and Staci are good and
caring parents, (2) each has positive and negative qualities the other does not
have, (3) both have good relationships with the children, (4) they live in close
geographic proximity to each other, and (5) both recognize the other parent’s
relationship with the children is important. On our de novo review, we agree with
these findings which are factors that would support a conclusion that joint
physical care is in the children’s interest and that it will duplicate, in part, the
relationship the children had with each parent prior to their parents’ separation.
We also believe the evidence supports a finding that both parents have common
goals for their children.
In saying this we recognize they are not in total
agreement on everything. Staci argues that the parties have disagreement about
the children’s extracurricular activities and that Alan favors his daughter and is
not patient with their son.3
The district court expressed its concern that the parents do not
communicate particularly well with each other and while their dialogue could be
better, they have managed to make a shared care arrangement work
satisfactorily for the one and one-half years they have been separated.
We do not believe the evidence supports the district court’s finding that
Staci, prior to the parties’ separation, was the primary care parent. The children
have been cared for by both parents. Staci went to work early in the morning
and Alan was left to getting their son on the bus and their daughter to day care.
Staci was more available to the children after school. Staci spent time with the
children early in the day on Saturday, but was not available to them in the late
3
She admits that she may favor their son.
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afternoon and evening.
These children have done well because while both
parents work outside the home and the children spend considerable time in
school, at day care, or in the care of their grandmothers, the parents both have a
strong relationship with the children and both have assumed substantial
responsibility, though not necessarily equal responsibility, for the children’s care
and have remained a substantial influence in their children’s lives. The joint
physical care plan that the parties have successfully executed since their
separation approximated in a reasonable way the past care giving of the parents.
Long-term, successful, joint care is a significant factor in considering the viability
of joint physical care after divorce. Hansen, 733 N.W.2d at 697 (citing In re
Marriage of Ellis, 705 N.W.2d 96, 103 (Iowa Ct. App. 2005)).
Furthermore,
because the parents now live and plan to live in close geographic proximity to
each other, the parenting plan will allow the children to attend the same school
and associate with the same peers in whichever home they are residing.
The district court has given Alan substantial visitation indicating the district
court’s opinion that the children should spend more time with their father as the
noncustodial parent than is usual in most cases. Staci contends the visitation
schedule given is not in the children’s interest and disrupts the children’s
activities with their friends. She contends, at the least, the visitation should be
modified to end on Saturday evening so she can take the children to Sunday
morning church as the children’s interests are served with religious instruction.
Alan disputes this is in the children’s interests, arguing that one of the reasons for
the court’s giving him Saturday nights is that Staci works Saturday nights and
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there are no reasons for the children to be in the care of a nonparent when he is
ready to care for them. Alan supports Staci having a major part in their children’s
lives. Staci appears less willing to share. A shared care arrangement will assure
that both parents continue to have an influential part in the children’s lives. We
modify the district court on this issue and provide that the parties should have
joint physical care and should rotate the children every week. We also modify
the order as to the $12,000 yearly adoption subsidy the parties receive from the
Department of Human Services to provide it shall go one-half to each party which
is in accord with their pretrial stipulation.
PROPERTY DIVISION.
In the case of In re Marriage of Dean, 642
N.W.2d 321, 323 (Iowa Ct. App. 2002), we set forth the court’s considerations
when distributing assets in a dissolution. Before making an equitable distribution
of assets in a dissolution, the court must determine all assets held in the name of
either or both parties as well as the debts owed by either or both. Dean, 642
N.W.2d at 323 (citations omitted). The assets should then be given their value
as of the date of trial. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); In re
Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct. App. 1994). The assets
and liabilities should then be equitably, not necessarily equally, divided after
considering the criteria delineated in Iowa Code section 598.21(5) (Supp. 2007).
In general, the division of property is based upon each marriage partner’s right to
a just and equitable share of the property accumulated as a result of their joint
efforts. Dean, 642 N.W.2d at 323.
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The court found the parties had a net worth of $221,469, that each had
brought property worth $8000 into the marriage, and that Alan had an inheritance
of $3000 that should be set aside to him. The court divided the $221,469, less
Alan’s inheritance, equally and came to the conclusion that each spouse should
receive $109,235 in value. The court found Staci was receiving property worth
$47,836 and that Alan owed her an equalization payment of $61,399. The court
ordered Alan to pay Staci $30,000 within sixty days and the balance of the
amount to be paid at the rate of $4000 in principal annually, beginning a year
from the filing of the decree, plus interest at five percent per year on the unpaid
balance.
Following trial Alan filed a motion to amend or modify findings of facts and
conclusions of law in the decree pursuant to Iowa Rule of Civil Procedure
1.904(2). He contended that he only received $750 worth of hay and $24,750
worth of corn rather than the $1350 worth of hay and $37,940 worth of corn the
district court determined he received. He asked the court to correct and show his
net worth at $156,843, leaving the equalization payment to be made to Staci at
$53,004, not the $61,399 ordered by the district court. He asked that it be paid at
$4000 a year with interest at five percent per annum. The district court declined
to change the property division or the equalization payment because it noted its
findings were based on the parties’ stipulated values.
Alan contends on appeal that the parties’ stipulation was correct as to the
bales of hay he had at the time of the parties’ settlement conference but by the
time of trial some hay had been fed, thus decreasing the number of bales he had
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then. He further contends that the stipulation indicted he had 2500 more bushels
of corn than he did. The district court did not err in accepting values of assets
stipulated to by the parties.4
Alan for the first time contends on appeal that the dairy barn5 he built and
paid for on his mother’s land is a permanent structure which should be
considered a part of the realty owned by his mother and should not have been
considered an asset of the parties. Alan also makes several other challenges to
valuations.
He contends the district court incorrectly fixed the value of the
property he brought to the marriage at $8000 when it should have been $44,300.
He also challenges the $300 the district court placed on an old truck. He argues
that these changes should be made and that Staci should be required to pay him
an equalization payment of $11,646.50. The principle that appellate courts will
not review issues that were not first presented to and decided by the district court
is an elemental one. Bill Grunder’s Sons Const., Inc. v. Ganzer, 686 N.W.2d
193, 197 (Iowa 2004); Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa
2003).
[I]t is fundamentally unfair to fault the trial court for failing to
rule correctly on an issue it was never given the opportunity to
consider. Furthermore, it is unfair to allow a party to choose to
remain silent in the trial court in the face of error, taking a chance
on a favorable outcome, and subsequently assert error on appeal if
the outcome in the trial court is unfavorable.
DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (quoting 5 Am.Jur.2d Appellate
Review § 690, at 360-61 (1995)).
4
5
Alan admitted signing the stipulation but contended he did not read it.
The barn was given to him in the property division.
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Trial courts must be afforded the opportunity to avoid or
correct error in judicial proceedings. Similarly, appellate courts
must be provided with an adequate record in reviewing errors
purportedly committed during trial. This perforce requires that
counsel make timely and sufficient motions or objections upon
which trial judges may rule. Absent such actions, an appellate
court has nothing to review.
Id. (citation omitted).
These challenges either were not preserved for review or were within the
range of evidence. A trial court’s valuation will not be disturbed when it is within
the range of evidence. See In re Marriage of Wiedemann, 402 N.W.2d 744, 748
(Iowa 1987). Moreover, appellate courts defer to a trial court’s valuations when
accompanied by supporting credibility findings or corroborating evidence. In re
Marriage of Keener, 728 N.W.2d 188, 194 (Iowa 2007); In re Marriage of Vieth,
591 N.W.2d 639, 640 (Iowa Ct. App. 1999). We affirm the property division in its
entirety.
APPELLATE ATTORNEY FEES.
Alan requests $6000 in appellate
attorney fees and Staci requests $3000 in appellate attorney fees. Appellate
attorney fees are not awarded as a matter of right. In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006).
We have the discretion to award appellate
attorney fees and in doing so; we consider each parties’ need, ability to pay, and
the merits of the appeal. Id. We order each party to pay his or her own attorney
fees. Costs on appeal are taxed one-half to each party.
AFFIRMED AS MODIFIED.
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