IN RE THE MARRIAGE OF JUAN ROMEO RIOJAS AND YOLANDA SERVANTES RIOJAS Upon the Petition of JUAN ROMEO RIOJAS, Petitioner-Appellant, And Concerning YOLANDA SERVANTES RIOJAS, Respondent-Appellee.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-087 / 08-0169
Filed July 22, 2009
IN RE THE MARRIAGE OF JUAN ROMEO RIOJAS AND YOLANDA
SERVANTES RIOJAS
Upon the Petition of
JUAN ROMEO RIOJAS,
Petitioner-Appellant,
And Concerning
YOLANDA SERVANTES RIOJAS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde,
Judge.
Juan Romeo Riojas appeals the child support, property division, alimony,
and attorney fee provisions of the decree dissolving his marriage to Yolanda
Servantes Riojas. AFFIRMED AS MODIFIED.
Theodore F. Sporer of Sporer & Flanagan, P.C., Des Moines, for
appellant.
Benjamin W. Blackstock of Blackstock Law Offices, Cedar Rapids, for
appellee.
Considered by Mahan, P.J., and Miller and Doyle, JJ.
2
MILLER, J.
Juan Romeo Riojas appeals the child support, property division, alimony,
and attorney fee provisions of the decree dissolving his marriage to Yolanda
Servantes Riojas. We affirm as modified.
I.
BACKGROUND FACTS.
Romeo and Jo1 were married in August 1984. Romeo was twenty-four
years of age and Jo was twenty-three. Jo had a son, Hector, who was later
adopted by Romeo when Hector was twelve years of age. Hector was twenty-six
years of age at the time of the August 2007 trial in this case.
Two sons were born to the parties’ marriage, the first in March 1992 and
the second in December 1993. They were fifteen years of age and thirteen years
of age respectively at the time of trial.
Romeo was forty-seven years of age at the time of trial. He was in good
health other than being slightly overweight.
Romeo is an engineer, having
received his Bachelor of Science in Chemical Engineering degree in 1984.
When the parties married in 1984 they first lived in California, where Romeo was
then employed.
Subsequent changes of residence, all related to Romeo’s
employment, have taken them to Maryland, back to California, to Virginia, back to
California, to Arizona in about 1997, and finally to Iowa in 2003. Their times of
residence at these locations have varied from about eight months to about eight
years.
Through his work experiences as an electronics engineer and more
recently as a software engineer, and through his changes in employment, Romeo
1
We refer to Juan as “Romeo” and to Yolanda as “Jo,” the names by which they are
commonly known and by which they were referred to at trial and in the trial court’s ruling.
3
has secured positions of increasing responsibilities and increased compensation.
By the time of trial Romeo had secured a transfer of his employment to Texas, to
be near his father who was suffering from cancer. His base pay as shown at the
time of trial is now $91,591 per year.
Jo was forty-six years of age at the time of trial. She was in good health,
other than suffering from high blood pressure. In the early 1980s Jo attended
junior college while working early morning and late evening shifts as a waitress
and caring for her son who had been born in 1980. She took business and
computer information system courses, but left school to marry Romeo and has
not completed a two-year college degree. In Jo’s opinion she has retained little
of the knowledge or skills she may have acquired from the courses taken almost
twenty-five years ago.
Prior to the parties’ marriage Jo had some work experience as a secretary
in an uncle’s import-export business, and as a waitress. After their marriage and
before
the
birth
of
their
son
in
1992
she
had
employment
as a
secretary/receptionist for a mobile home park manager, as a sales clerk in
various businesses, and as an employee in a daycare center. Her employment
changed frequently with the parties’ changes of residence. All of Jo’s jobs were
at or below minimum wage.
When the parties’ first son was born they agreed Jo would be a stay-athome mother for their children.
For a period of time in the mid-1990s she
provided daycare for four to six children in the parties’ home. It appears that Jo
was not employed outside the home during the period from the parties’ move to
4
Arizona in about 1997 until September 2006 when she secured employment in
the delicatessen at a Target store about two months after the parties separated.
The separation occurred when Romeo moved out of the family home and into an
apartment. Jo works thirty-five hours per week on average, and is unable to
secure more hours at Target. She has secured an increase in compensation
since beginning her employment there, and now earns $8.27 per hour, the
highest rate of pay she has ever received. Her gross income from employment is
thus $15,051.40 per year.
In recent years Jo has been very active in, and has received some awards
for, volunteer work. She has been particularly active in the Boy Scouts, where
the parties’ fifteen-year-old son has achieved the rank of Eagle Scout and their
thirteen-year-old son is about to do so. Romeo has felt that Jo should have
secured outside-the-home employment since about the time the youngest son
started school, apparently in 1999.
II.
THE DISTRICT COURT DECREE.
Certain portions of the district court’s judgment are relevant to the issues
presented on appeal.
Pursuant to an agreement of the parties, the district court ordered joint
legal custody of the parties’ two minor sons and placed responsibility for their
physical care with Jo, subject to rights of visitation in Romeo. The court ordered
Romeo to pay child support of $1418.55 per month, reduced to $963.15 per
month when the older of the two children is no longer eligible for support.
5
The district court awarded Romeo a 1999 Ford E-150 van which had a
value of approximately $6000, and ordered that he be responsible for the debt of
$12,342 on the van. The court found the market value of the parties’ residence
to be $175,000, and awarded it to Jo, making her responsible for the debt on it of
$162,630.97, consisting of a first mortgage of $136,597.58 and a second
mortgage of $26,033.39.2 The court further ordered that when Romeo’s child
support obligation ceased, Jo then sell the residence and pay Romeo one-half of
an amount consisting of the equity existing in the residence at the time of the
parties’ divorce less real estate taxes prorated to the date of possession by the
purchaser and less all costs of sale, including real estate broker fees, without
payment of any interest on any amount payable to him.
The district court ordered that Romeo’s retirement plans and accounts be
divided equally between the parties by qualified domestic relations orders. One
such account is identified as a Volt Technical Services Savings Plan 401(k) (with
Charles Schwab) having a value of $125,742.54. Another is a Rockwell Collins
Employee Stock Purchase Plan (with Fidelity) having a value of $43,559.16. A
third, as shown by Romeo’s testimony, is a “defined benefit plan” for which no
present value is shown but which Romeo’s testimony shows is vested and in
which he had earned the right to eventually receive $185 per month.
In a joint pretrial statement filed shortly before trial Jo proposed that
Romeo be responsible for the following debts and “bills”: (1) Wells Fargo Auto
Loan, (2) Wells Fargo Credit Card, (3) HAFCU Visa, (4) Marriott Visa, (5)
2
It thus appears that the court implicitly found the parties had a time-of-trial equity in the
residence of $12,369.03.
6
Discover gas card, (6) Rockwell Visa card (7) Wildwood Apartments, (8) Alliant
Energy (Romeo’s apartment), (9) Mediacom (apartment), (10) ANPAC Auto
Insurance, (11) US Dept. of Education (loans 1 & 2), (12) US Dept. of Education
(Hector loan), and (13) NACOLAH Life Insurance. Although the record is not
clear on the point, it would appear that the second through sixth of these items
are credit card debts or accounts, the seventh through ninth relate to Romeo’s
apartment, the tenth may be an outstanding bill for auto insurance, and the
thirteenth may be for term life insurance (no value for life insurance is shown in
any filing, and no life insurance policy is awarded by the district court’s ruling).
Jo proposed that she be responsible for the first and second mortgages and the
recurring utility bills for the parties’ residence that she hoped to continue
occupying. The district court’s ruling adopted Jo’s proposal as to these items,
except as to one of the US Dept. of Education loans, without findings as to the
amount of any one or more of them. We have earlier noted above the amount of
the auto loan and the amounts of the first and second mortgages. The evidence
shows that the Marriott Visa debt was $3201.69, a “Pulaski credit card”
(apparently one of the credit cards, but by a different name, that Romeo was to
be responsible for) debt was approximately $2200, the US Dept. of Education
(loans 1 & 2) debt was $4361.58, the US Dept. of Education (Hector loan) debt
was $2454.96, and an ATT credit card debt was $3671.
The district court awarded each party all bank and credit union accounts in
that party’s individual name, but identified no accounts and placed no values or
amounts on such accounts. The court awarded each party all household goods,
7
furniture, appliances, personal effects, and other tangible personal property
presently in that party’s possession, but placed no estimate of value on those
awards.
The district court ordered Romeo to pay Jo one-half of a bonus of
approximately $5000 he received from Rockwell Collins in December 2006, and
ordered him to pay her $5000 to assist her in purchasing a vehicle. The court
ordered Romeo to pay Jo $1300 per month in alimony until she dies or remarries.
It ordered him to pay her $5000 in attorney fees.3
Romeo appeals, raising the issues noted above and described in greater
detail below.
III.
SCOPE AND STANDARDS OF REVIEW.
In this equity case our review 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).
3
This amount is in addition to $1000 previously ordered.
8
IV.
MERITS.
A.
Child Support.
The district court included a bonus of $5000 in Romeo’s annual gross
income in calculating his child support obligation. Romeo claims the court erred
in doing so. For two reasons we reject this assignment of error.
“All income that is not anomalous, uncertain, or speculative should be
included for the purpose of determining a child support obligation.”
Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004).
In re
Such things as
overtime income, incentive pay, and bonuses are included in a party’s income if
reasonably to be expected. Markey v. Curney, 705 N.W.2d 13, 19 (Iowa 2005).
When deciding whether bonuses should be included in gross income to
determine a child support obligation, we look at a party’s employment history
over the past several years to determine whether the amount paid from year to
year was consistent.
In re Marriage of Nelson, 570 N.W.2d 103, 105 (Iowa
1997). If the amount paid was consistent, the bonuses should be included. Id.
Romeo received a bonus of $5000 or more in each of the three years
immediately preceding the year in which the dissolution trial was held.
We
conclude the district court’s decision to include the $5000 bonus in calculating
Romeo’s child support obligation is well supported by the evidence and the law.
We also note that the district court’s order, that Romeo pay child support
of $1418.55 per month, reduced to $963.15 per month when the older of the two
children is no longer eligible for support, is exactly what Romeo proposed in a
9
joint pretrial statement filed just one day before trial. Having received precisely
what he proposed, Romeo is in no position to complain.
B.
Property Division and Alimony.
Romeo next claims the trial court erred in its distribution of property.
Although the stated issue is limited to property division, Romeo includes within it
a claim that the court erred in awarding permanent alimony to Jo.
We will
address both issues.
Before addressing the issues presented, we note some general principles
concerning property division and alimony. Iowa is an equitable distribution state,
which means the partners in a marriage that is to be dissolved are entitled to a
just and equitable share of the property accumulated through their joint efforts.
In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct. App. 1995). Iowa courts do
not require an equal division or percentage distribution.
In re Marriage of
Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). The determining factor is
what is fair and equitable in each particular circumstance. Id. When dividing
property between the parties we take into consideration the criteria codified in
Iowa Code section 598.21(5) (2007). In re Marriage of Estlund, 344 N.W.2d 276,
280 (Iowa Ct. App. 1983).
Adjudicating property rights in a dissolution action inextricably involves a
division between the parties of both their marital assets and liabilities.
Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980).
In re
The allocation of
marital debts is as integral a part of property division as is the apportionment of
marital assets.
Id.
The allocation of marital debts therefore inheres in the
10
property division. Id.; In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct.
App. 1996). Accordingly, the term “property division” incorporates both division
of assets and assignment of responsibility for debts.
1.
Property Division.
Romeo claims the district court erred in finding the value of the parties’
residence to be $175,000. He argues in part: “No credible evidence supports
the trial court’s record findings of value nor justifies the trial court’s disregard of
the objective and hence more credible evidence concerning value.”
Romeo introduced in evidence the Linn County Assessor’s assessment of
the residence for real estate tax purposes. That assessment was at a value of
$201,148. Jo introduced in evidence testimony and a written appraisal indicating
the fair market value of the residence to be $175,000. This evidence was based
on an appraisal by Jessica Trout, a certified residential appraiser, conducted a
few days before trial. Trout observed the property, examined and considered the
assessor’s records, and inspected the property.
She developed a list of
comparable properties, considering similar properties in the same general
neighborhood. Trout has considerable relevant experience, having conducted
over 2000 real estate appraisals over the preceding ten years.
The district court quite apparently accepted and relied on the Trout
appraisal.
Ordinarily, a trial court’s evaluation will not be disturbed when it is
within the range of permissible evidence. . . . Although our review is
de novo, we ordinarily defer to the trial court when valuations are
accompanied by supporting credibility findings or corroborating
evidence.
11
In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007). Here the trial
court’s valuation is within the range of permissible evidence and supported by
that evidence. We affirm the court’s valuation of the residence.
Romeo claims the district court erred in awarding the marital home to Jo
until his child support obligation ends, thus providing her with an interest-free
loan of his share of the parties’ equity in the home. He also complains of the
court’s order that closing costs be taken out of the parties’ equity before he
receives any portion of that equity. We will here address his claim of error in
awarding the residence to Jo until his support obligation ends. We will address
his other complaint in our subsequent consideration of his other claims of error
regarding property division.
“Frequently, payment of equity in a homestead to the non-custodial parent
is postponed until the child or children graduate from high school to assure that
the children have the stability of remaining there.” In re Marriage of Sychra, 552
N.W.2d 907, 908-09 (Iowa Ct. App. 1996). Among the factors to be considered
in property division is “[t]he desirability of awarding . . . the right to live in the
family home for a reasonable period . . . to the party having physical care of the
children.”
Iowa Code § 598.21(5)(g).
The district court’s decision places
responsibility for the children’s physical care with Jo. We presume, as the court
apparently did, that the children will benefit from the stability of being able to
remain in the home. We agree with and affirm the court’s decision on this issue.
Romeo claims the district court erred in (1) dividing his retirement plans
and accounts and his pension equally between the parties, (2) making him solely
12
responsible for the “US Dept. of Education (loans 1 & 2),” (3) ordering him to pay
one-half of his 2006 bonus to Jo, and (4) ordering him to pay Jo $5000 to assist
her in purchasing a vehicle.
We must, as the trial court must, consider the overall property division
rather than any particular item or items in isolation. See, e.g., In re Marriage of
Pittman, 346 N.W.2d 33, 37 (Iowa 1984) (“In considering the overall property
division . . . we conclude the property division was equitable.”).
The district court made no findings as to the values of either certain bank
and credit union accounts or substantial personal property it awarded.
The
record appears to contain no findings or evidence as to the amounts of certain
debts and obligations assigned by the court. The record discloses no present
value for Romeo’s pension plan which the district court divided equally between
the parties. We therefore must, and do, assume that these items were of such
value or were so divided that they need not be considered in evaluating whether
the remaining division of assets and liabilities is equitable.
As previously noted, the district court found that the parties had a present
equity of $12,369.03 in their residence, awarded the residence to Jo, and
ordered that when Romeo’s child support obligation ended Jo sell the residence
and pay one-half of that equity to Romeo, with that equity reduced however by
real estate taxes and costs related to the sale, including real estate broker fees.
It would appear reasonable to assume that there will be a real estate broker’s
commission of six or seven percent, some real estate tax expense, and some
small amount of other transaction costs. The court’s order would thus reduce the
13
equity, of which Romeo is to receive one-half, to nothing. This appears to us to
be inequitable. Although we have affirmed the award of the home to Jo without
payment of one-half of the equity to Romeo until later, and then without interest,
we conclude that equity requires that he receive his one-half of the present equity
without reduction for real estate taxes and expenses of sale. We accordingly
modify the district court’s decree to so provide.
Romeo’s 2006 year-end bonus of approximately $5000 was received
some two months after a stipulation and resulting order required him to pay
temporary alimony of $700 per month. The bonus was subject to, and thus
reduced by, income taxes. The remainder of the bonus is presumably reflected
in the assets owned by the parties at the time of trial some eight months later or
resulted in a reduction in the debts they would otherwise have had at that time.
We conclude that under these circumstances, together with our affirmance of
most of the remainder of the district court’s property division as noted below, it
would be inequitable to require this payment. We accordingly modify the district
court’s decree to delete the requirement that Romeo pay Jo one-half of the 2006
bonus.
Both of the US Dept. of Education loans were for educational expenses
incurred by the parties’ now-adult son, Hector. Romeo proposed that each party
pay one-half of each loan, and Jo proposed that Romeo pay all of each loan.
The district court ordered that Romeo pay the “loans 1 & 2” and that each party
pay one-half of the “Hector loan.” We conclude that in order to make the district
14
court’s property division equitable each party should be required to pay one-half
of the “loans 1 & 2.” We accordingly modify the decree to so provide.
The remainder of the district court’s property division, as modified above,
results in Romeo receiving a property award of $69,730.09, consisting of the
1990 van, one-half of the equity in the residence, one-half of the Volt 401(k), and
one-half of the stock purchase plan, less the debt on the van, the Marriott Visa
debt, the Pulaski credit card debt, one-half of the US Dept. of Education loans 1
& 2, one-half of the Hector student loan, and $5000 to be paid to Jo. It results in
Jo receiving a property award of $89,709.40, consisting of one-half the equity in
the residence, one-half the Volt 401(k), one-half of the stock purchase plan, and
$5000 to be paid by Romeo, less the ATT credit card debt, one-half of the US
Dept. of Education loans 1 & 2, and one-half of the Hector student loan. While
this property division remains favorable to Jo, we believe that given the
substantially differing earning capacities and educations of the parties4 this
division together with our following modification of the court’s alimony award
makes the combined property division and alimony award equitable.
2.
Alimony Award.
In the parties’ joint pretrial statement and at trial Romeo proposed that Jo
be awarded rehabilitative alimony of $400 per month for forty-eight months or
until her remarriage or either party’s death. In the joint pretrial statement and in
testimony at trial Jo proposed that she be awarded alimony of $900 per month
until she died or remarried.
4
Later, in a brief filed two weeks after trial, Jo
See Iowa Code § 598.21(5)(f) (listing the parties’ earning capacities and educations as
factors to be considered in property division).
15
proposed that she receive traditional alimony of $700 to $900 per month, to be
increased to $1500 or $1700 per month when Romeo’s child support obligation
ended. The district court ordered alimony of $1300 per month until Jo dies or
remarries. Romeo claims the award of permanent alimony is not supported by
the facts as shown in the record.
“Alimony is an allowance to the spouse in lieu of the legal obligation for
support.” In re Marriage of Sjulin, 431 N.W.2d 773, 775 (Iowa 1998). Alimony is
not an absolute right; an award depends on the circumstances of each particular
case. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct. App. 1998). Any
form of spousal support is discretionary with the court. In re Marriage of Ask, 551
N.W.2d 643, 645 (Iowa 1996). The discretionary award of spousal support is
made after considering the factors listed in Iowa Code section 598.21A(1).
Dieger, 584 N.W.2d at 570. Even though our review is de novo, we accord the
district court considerable discretion in making alimony determinations and will
disturb its ruling only where there has been a failure to do equity. In re Marriage
of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct. App. 1997).
When determining the appropriateness of an award of alimony, a court
must consider the length of the marriage, the age and health of the parties, the
parties’ earning capacities, the levels of education, and the likelihood the party
seeking alimony will be self-supporting at a standard of living comparable to the
one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839
(Iowa Ct. App. 1998). A court also considers the distribution of property, Iowa
Code § 598.21A(1)(c), as well as the tax consequences to each party, id. §
16
598.21A(1)(g). A court must also balance a party’s ability to pay against the
relative needs of the other. In re Marriage of Hettinga, 574 N.W.2d 920, 922
(Iowa Ct. App. 1997). In marriages of long duration, where the earning disparity
between the parties is great, both spousal support and a nearly equal property
division may be appropriate. In re Marriage of Weinberger, 507 N.W.2d 733, 735
(Iowa Ct. App. 1993).
After considering the relevant factors, we conclude an award of traditional
alimony is appropriate, but, that given the somewhat unequal property division
and Romeo’s child support obligation the amount awarded is excessive during
the period of time the child support obligation continues. We accordingly modify
the district court’s alimony award to provide that Romeo shall pay alimony of
$900 per month until one of the two children is no longer eligible for child support,
at which time his alimony obligation shall increase to $1100 per month,
continuing until the second child is no longer eligible for child support, at which
time his alimony obligation shall increase to $1300 per month.
C.
Trial Attorney Fees.
Romeo claims the district court abused its discretion by awarding $5000 in
attorney fees to Jo. An award of attorney fees lies 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 Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). An
award must be for a fair and reasonable amount, and based on the parties’
respective abilities to pay. In re Marriage of Coulter, 502 N.W.2d 168, 172 (Iowa
Ct. App. 1993). Although the amount may seem rather large, Jo did testify that
17
she had incurred almost $11,000 in attorney fees.
Under the circumstances
shown we find no abuse of discretion and affirm the court’s attorney fee award.
D.
Appellate Attorney Fees.
Jo requests an award of appellate attorney fees. Such an award rests in
this court’s discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa
2006). The factors to be considered include the needs of the party requesting
the award, the other party’s ability to pay, and the relative merits of the appeal.
Id. Upon consideration of the foregoing factors, we award Jo $2000 in appellate
attorney fees.
V.
CONCLUSION.
Upon our de novo review, we modify the dissolution decree to provide that
Romeo receive his one-half of the present equity in the parties’ residence without
reduction for real estate taxes and expenses of sale; to delete the requirement
that Romeo pay Jo one-half of his 2006 bonus; and to make each party
responsible for one-half of the “US Dept. of Education (loans 1 & 2)” debt. We
also modify the alimony award, as noted above. In all other respects we affirm
the district court’s decree. We award Jo $2000 in appellate attorney fees.
Costs on appeal are taxed two-thirds to Romeo and one-third to Jo.
AFFIRMED AS MODIFIED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
