Divorce Decree

Recently, the Iowa Court of Appeals decided a case involving spousal support.  (The court also discussed the award of attorney fees and the husband’s child support obligation.)  The case, In Re the Marriage of Jeffrey A. Richter and Lisa M. Richter, involved a marriage that had produced four children.  The parties had appealed the decree entered in their dissolution, with both parties arguing that the spousal support awarded was incorrect.

Spousal Support in Iowa

The court explains the issue of spousal support in its decision:

Spousal support “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 1988). Spousal support is a discretionary award dependent upon each party’s earning capacity and present standards of living, as well as the ability to pay and the relative need for support. See In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct. App. 1997). Spousal support “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).

Factors Considered by the Court in Awarding Spousal Support

The Iowa Code addresses spousal support in Section 598.21(A).  Here, the criteria for determining support are listed.  They are:

  1. The length of the marriage
  2. The age and physical and emotional health of the parties
  3. The distribution of property made in the dissolution
  4. The education level of each party at the time of the marriage and at the time the action is commenced
  5. The earning capacity of the party seeking maintenance
  6. The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage
  7. The tax consequences
  8. Any mutual financial agreements between the parties
  9. Any antenuptial agreement
  10. Other factors the court determines relevant

As the court notes, they give “considerable discretion” to the district court in awarding alimony and will only decide differently than the district court when there has been a failure to do equity.

Spousal Support Decision

In this case, the husband has monthly income of approximately $10,000 and the wife has a monthly income of approximately $3000.  After monthly living expenses are considered, there was a $6000 difference between incomes.  The four children lived with the wife.  The district court decided that since the wife was awarded over $20,000 more in the distribution of property, that it was appropriate to award her less spousal support and for a shorter amount of time.  The court awarded her $2200 per month in traditional alimony for twelve years.

Both parties appealed this decision.  The court of appeals agreed with the district court’s award.

Factors in Determining Spousal Support

As in other cases determining spousal support, or alimony, the court took several of the factors listed in Iowa Code Section into consideration.  In affirming the ruling, the court noted that the marriage lasted twelve years.  The husband had a higher earning capacity than the wife.  There were four children produced during the marriage and the wife was working part-time, which was agreed upon at the time of the birth of their youngest child by both parties.  The wife’s employer provided a letter stating that there would be no full time work opportunities for the wife in the near future.

The court states that the amount of alimony is enough for the wife to continue caring for the children as they were cared for during the marriage and gives her time to become fully employed.

 

 

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A case originating in Hamilton County Iowa was recently reviewed and decided by the Iowa Court of Appeals.  In their decision, the court affirmed the decision of the district court to deny the petitioner’s request to modify their dissolution decree.

Case Background

The original divorce decree involved in this case was entered in March of 1999.  The parties, Kevin Arndt and Shanon Green had two children during the course of their marriage, a son and a daughter.  In the decree, the couple agreed to joint legal custody with Shanon retaining physical care of the children.  However, the couple ended up alternating care of the children every two weeks.  Kevin was ordered to pay $300 in support every month in child support.

Modifications of the Dissolution Decree

There were several modifications made to the decree including one increase and one decrease to the amount of support Kevin was ordered to pay.  The modifications were made in 2001 and 2003.  There was also a modification to the custody arrangement of the children.  A second modification in 2003 ordered the couple to alternate care of the children on a weekly basis and neither was required to pay child support.

Shanon petitioned the court again in 2009 to modify the decree so that the physical care of the children be placed with her.  In order to modify the decree, Shanon was required to show a “substantial and material change in circumstances” had occurred.  She alleged that her ex-husband  was not exercising his weeks of childcare, that he had stopped communicating with her, and that he was failing to “properly guide” their son who was involved in delinquency proceedings at the time.

District Court’s Decision Regarding the Modification Petition

By the time the case actually came to trial, the parties had come to the agreement that their son should be placed in the physical care of Kevin, however, could not stipulate to the placement of their 15 year old daughter.  Because of the daughter’s age, her opinion was taken into consideration.  She liked being with her mother during the week because it accommodated her scheduled activities, however, was clear that she preferred being with her father when it did not interfere with her activities.

The District Court ruled that Shanon had not met her burden to establish material and substantial change in circumstances.  Shanon appealed to the Iowa Court of Appeals.

Iowa Child Custody Modification Law

 

“Once a physical care arrangement is established, the party seeking to modify it bears a heightened burden, and we will modify the arrangement only for most cogent reasons.”  Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

There is a high burden to meet if a party wants to modify a decree of the court.  The petitioner must establish, by a preponderance of the evidence, that the circumstances since the decree was entered have changed to substantially and materially that the children’s best interests necessitate a change to the decree.  The circumstances necessitating the change to the decree must not have already been considered by the court when the decree was entered and must not be temporary.

If the court decides that this first burden has been met, they will then decide if the petitioning party is able to care more effectively for the child.

Factors to be considered in modifying custody include:

  1. Best interests of the children
  2. Child’s preference (but less weight in modification than in initial custody proceedings)
  3. Siblings should not be separated
  4. Conduct of the custodial parent (including whether the parent encourages and facilitates the child’s relationship with the other parent),including denial of visitation or contact.
  5. Stability for the Child

 

IA Court of Appeals Decision

The court did not find the evidence supported a change in the share care arrangement of the parties.  Shanon failed to show a substantial and material change in circumstances to necessitate a modification to the dissolution decree.  The court did find evidence to support a modification to Kevin’s ordered amount of child support.  Kevin is now ordered to pay $173.13 in support of the two children.

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An editorial  in the Huffington Post, written by Micki McWade, a Collaborative Divorce Coach, Psychotherapist, Author and Parent Educator and Collaborative Trainer, addresses the issue of when one spouse has the desire to obtain a divorce and the other does not.  McWade suggests that only very rarely are divorces mutual decisions made by couples, and that it is much more likely that one person in the relationship desires a change.  The degree to which the non-consenting spouse resists can vary greatly however.

When one spouse wants to slow the divorce process, there are many avenues they can use to do so, however, all will most likely cause legal fees to skyrocket and their marital resources to diminish.  If there are children involved, this can cost them more than their financial security, but also their children’s.  It may also cause much more animosity throughout the divorce process which would also be unfortunate for any children involved.

Salvaging a Relationship Gone Bad

In her article, McWade addresses many of the emotional issues that are involved in a relationship where one party wants to divorce and the other does not.  She believes that if one party has already decided they want to divorce and do not want to make efforts to salvage the relationship, there is very little the other spouse can do to change their minds.  McWade suggests that the divorce-minded party may have already been in the divorce “state of mind” for a length of time.  Although the idea of a divorce may be shocking or overwhelming to the other party, it may be long overdue for the initiating spouse.

Iowa Divorce (Dissolution) Law

Iowa Divorce Conciliation Efforts and Waiting Periods

In her article, McWade also touches upon something that is reflected in Iowa divorce (or officially called, dissolution) law.  Even if one party resists in a divorce, if the other party desires a divorce, they will receive one.  In Iowa, a judge may require parties to participate in conciliation efforts for sixty days.  Also, there is a waiting period of ninety days between the initial dissolution petition and when the court can enter a final dissolution decree.  Although there are circumstances that allow a judge to waive the waiting period, it is generally enforced.

Iowa No-Fault Divorce

Additionally, Iowa is a “no-fault” divorce state.  This means that a spouse who wishes to obtain a divorce has no requirement to blame their spouse for any wrongdoing.  This allows the divorce to be (hopefully) less contentious and be completed more quickly.  This does not mean issues of wrongdoing will not arise in the divorce, especially if child custody issues are involved, however, it does mean that the petitioning party does not have to “accuse” their spouse of anything specific to obtain a divorce.

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Clint Nass has appealed the decision of the Iowa District Court for Bremer County (in In Re the Marriage of Noel Ann Nass and Clint Lewis Nass) in regards to the physical care provision of the dissolution decree.  It is clear, from the Iowa Court of Appeal’s comments, that this divorce was filled with a fair amount of animosity.

The couple originally met when Noel was a senior in high school and Clint was 26 years old.  They shared a common bond of enjoying horseback riding.  After marrying in 2005, the couple opened a pet store.

Unfortunately, Clint and Noel experienced some troubling times in the next few years.  They suffered from the loss of their infant son shortly after his birth, as well as the birth of another premature baby.  Both the pet store the couple opened and their home were destroyed by a flood of the Cedar River in 2008.  They were forced to live in a garage with their 9 month old son.

Joint Legal Custody and Sole Physical Custody Awarded

Eventually, by working side and part time jobs, the couple was able to move to an acreage and have a home once again.  By the fall of 2009 however, the couple had separated.  Noel took primary care of the children because of the work schedule Clint chose at his employer, John Deere, 3rd shift (10:30pm to 7:00am).  He did, apparently, have a choice in the hours he worked.

The divorce trial lasted three days and resulted in the parties having joint legal custody of the children and Noel having physical care, with liberal visitation for Clint.  This decision is in keeping with Iowa child custody law.

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Affirmation of Lower Court’s Child Custody Decision

In its analysis, the Court of Appeals dispenses quickly with any question of the lower court’s placement of physical care of the children, saying “she, quite simply, can minister more effectively to the long-range best interests of the children.”  In stating this however, the court of course considered the relevant factors from In re Marriage of Winter, 223 N.W.2d 165, 166-67.  The court made clear that it was “abundantly clear” that Noel had been the primary caregiver, even after the devastating loss of her first child, their business, and their home.  Clint’s time with the children was very limited even when they were in his care.  His mother, the children’s paternal grandmother, often cared for the children as a result of the work schedule Clint chose to maintain.

Throughout the divorce, Clint has refused to converse directly with Noel.  Despite this, Noel has continued to attempt to provide the children with quality time with their father.  This is important to the court, as they must consider  which parent will encourage the most contact by the noncustodial parent with the children in Iowa.  The court notes that Noel has cooperated with Clint under very trying circumstances and that Clint’s interest in the children did not arise until after the couple’s separation and “even then was continually diluted by his other, selfish interests.”

The court affirms, and wholeheartedly at that it seems, the decision of the lower court to have physical care of the children remain with Noel despite Clint’s arguments.  Noel was also awarded appellate attorney fees of $1500.

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The Iowa Court of Appeals recently affirmed  the decision of a Hamilton County Court to dismiss the child support modification application of Amy Eger.  Ms. Eger and her former husband Michael married in 1997 and had 2 sons.  Their stipulated divorce decree included shared legal custody and joint physical care of their children.  Because the couple earned similar incomes and was sharing the responsibility of their sons’ care, neither party was required to pay child support.

Application to Modify Child Support

Two years after the divorce decree was entered, Amy filed an application seeking to increase Michael’s child support amount from $0 to $240.78.  Amy claimed that the original arrangement differs more than 10% form the Iowa child support guidelines.  Alternatively, Michael testified that he does indeed already pay to support his son’s sports activities and contributes financially when he has physical care of the boys every other week.  He also argues that their individual incomes have not changed since their divorce.  (He earned approximately $40,000 and she earned approximately $33,000).

Analysis of the Court in Affirming Decision to Dismiss Child Support Modification Application

The Iowa Court of Appeals reviews child support modification proceedings de novo.  The “de novo” standard of review means that the court will consider all legal and factual issues anew, giving weight to the trial court’s findings of fact, especially the credibility of witnesses, but are not bound by the court’s findings.

Modifying Child Support Orders

“Substantial Change in Circumstances”

To successfully modify child support in Iowa, Amy must establish there has been a “substantial change in the circumstances of the parties” since the time of the decree.  The decree that was originally entered was final as to the circumstances existing at the time.  Therefore, if there is a substantial change in those circumstances, the court will be allowed to modify the amount of support originally set.

“Injustice” or “Failure to do Equity”

In addition to the substantial change in circumstances, Amy must also establish that continued enforcement of the original child support order would result in a wrong or injustice.

In denying Amy’s application for support modification, the District Court found that there was a 10% difference between what Michael should be paying and what he was required to pay.  However, unfortunately for Amy, this difference existed at the time the decree was stipulated to.  Therefore, the court decided that to apply the child support guidelines at this point, and not earlier when the decree was agreed upon would be inequitable.

Regretting the Original Decree

The Appeals Court concludes that Amy, “now regretting at the time of divorce, seeks to use a “mechanical” application of the Iowa Code to get out of her commitment.”  The court explains that all of the circumstances that are now true, were also true or could have been reasonably anticipated when the original divorce decree was agreed to.  Ultimately, they find that Amy has not established a substantial change in circumstances to justify a modification to the child support agreement.

The court also finds that the continued enforcement of the decree requiring neither party to pay support does not result in any wrong or injustice.

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The Iowa Court of Appeals recently decided a case that involves several points including child custody, visitation and support.  The case is brought on appeal by Daniel Moyer from the Iowa District Court for Pottawattamie County.  Daniel and his ex-wife Ashley Moyer were married in March of 2008 and had previously had a son, Gabriel, born in July 2006.   They divorced in June of 2010.  All of the issues were decided and included in the couple’s dissolution of marriage decree.

 In Re the Marriage of Ashley Moyer and Daniel Moyer

The couple lived with Dan’s parents rent and expense free while Ashley was pregnant with their child and after the birth when married.  The court finds that although living with Dan’s parents, both Dan and Ashley were ambitious and industrious.  Dan went to school for an associate’s degree in math while Ashley took care of their child and eventually attended culinary school and worked in food service.

When Dan and Ashley separated, Ashley moved out of her in-law’s home with Gabriel, however, Dan continued to care for Gabriel at night while Ashley worked.  Approximately a year later, Dan moved to Laramie, Wyoming to pursue a degree in petroleum engineering at the University of Wyoming.  He lived with his girlfriend and her child.  Ashley continued to live and work in Council Bluffs.

The divorce decree, entered August 23, 2011, granted physical care to Ashley with Dan receiving visitation when he is in Iowa, along with 6 weeks of visitation in the summer and over the Christmas holidays.  Dan was ordered to pay $195.13 per month in child support.  Soon after the decree was entered, Dan filed a combined motion for new trial, expanded findings, and interpretation.

 Court of Appeals Reviews District Court’s Child Custody, Visitation and Support Decision

 Child Custody

The Court reviews child custody decisions de novo, meaning they examine the entire record and make new judgments on each issue presented.  They will give strong consideration to the district court’s findings of fact.

In favor of his being granted child custody, Dan argues that he is the more stable parent, he had been the primary caregiver, the proximity of Gabriel to his grandparents was relied too heavily upon by the district court, and that Ashley disregards his role as a parent.  The court views all of these arguments in the light of what is in the best interest of the child.  The factors set forth in Iowa Code section 598.41(3) (2009) guide the court:

 

3.  In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors:

 

a.  Whether each parent would be a suitable custodian for the child.

b.  Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

c.  Whether the parents can communicate with each other regarding the child’s needs.

d.  Whether both parents have actively cared for the child before and since the separation.

e.  Whether each parent can support the other parent’s relationship with the child.

f.  Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.

g.  Whether one or both the parents agree or are opposed to joint custody.

h.  The geographic proximity of the parents.

i.  Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.

j.  Whether a history of domestic abuse, as defined in section 236.2, exists.  In determining whether a history of domestic abuse exists, the court’s consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.

In regards to being the more stable parent, the court finds nothing with regard to Ashley’s employment or living situation that would hamper her ability to care for Gabriel.  In fact, they agree with the district court’s determination that Ashley actually provides the more stable environment that includes Gabriel’s grandparents.

The court also rules in Ashley’s favor in regards to the question of who was Gabriel’s primary caregiver.  The court finds that both parties are capable of caring for the child.  At trial, Ashley testified that she was in fact the primary caregiver and Dan agreed.

Dan’s argument that the district court relied too heavily upon the proximity of Gabriel to his grandparents also did not survive.  The court discusses the fact that Dan could have chosen to attend school at a University only 3 hours away that offers the same program that he is enrolled in at the University of Wyoming.  They find that although Ashley’s plans may change, at the present time, she is planning to remain in Council Bluffs near Gabriel’s extended family.  The court does not believe that the district court placed too much importance on this factor.

Finally, the court finds that although Ashley could have made better efforts at communication on certain issues with Dan, Ashley and Dan have actually been able to work together in the past.  The minor communication glitches do not warrant a finding that Ashley disregards Dan’s role as parent.

Overall, the court of appeals agrees with the district court that it is in the child’s best interest to place physical care of Gabriel with Ashley.  They mention that Dan’s decision to attend school 8 hours away from his extended family tipped the balance in favor of Ashley.

Child Visitation

Just as with child custody, the child’s best interest is the main consideration of the court when ruling on visitation.  Iowa Code section 598.41(1) guides their decision:

598.41  CUSTODY OF CHILDREN.

1. a.  The court may provide for joint custody of the child by the parties.  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 after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Dan argues that the visitation schedule in the decree fails to maximize contact with both parents.  He requests additional visitation in his appeal.  He also asks for improved telephonic and electronic communication with Gabriel.  Dan also complains that the burdens of travel are placed on him.

In order to provide maximum contact with both parents, the court modifies the decree so Dan receives additional visitation during Thanksgiving and Spring Breaks.  The court also agrees that it would be fair for Ashley to have to share in the expense of Dan traveling to see Gabriel in limited circumstances.

 Child Support

The final issue the court considers is the amount of child support Dan is required to pay.  In Iowa, child support is determined by guidelines set forward by the Iowa Supreme Court.  The court determines both parent’s monthly income to arrive at the amount of child support owed.  The court decides that Dan is capable of working part time despite his demanding school schedule and that the student loans he voluntarily took out may be applied to his monthly income.  The court requires Dan to pay $195.13 in child support.

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Iowa Supreme Court Rules on Post-Secondary Education Subsidy

When a Parent will be Required to Pay for a Portion of their Child’s College Education

On April 27, 2012 the Iowa Supreme Court entered a ruling regarding the parental requirement to pay a portion of children’s post-secondary education as outlined in Iowa Code Section 598.21F(2011). The statute provides that a court may order a “post-secondary education subsidy” if good cause is shown. The court will consider the age of the child, the child’s financial resources, whether the child is self-sustaining, and the financial condition of each parent in determining whether there is good cause to require the parents to pay for any of the child’s college education.

How Much will a Parent be Required to Pay?

If good cause is found to exist, the court will base the cost of the child’s college education on the cost for an in-state university where the child would receive a four year undergraduate degree. The court will then consider how much the child should reasonably be expected to contribute taking scholarships, financial aid, loans, and the child’s ability to work into consideration. After all of these considerations, the statute provides that neither parent should be required to pay more than one third of the entire cost of the child’s college education.

When Doesn’t a Parent have to Pay?

The post-secondary education subsidy will NOT be required of a parent that has been repudiated by the child. This means that if the child has publicly disowned the parent or refused to acknowledge the parent, there will be no requirement for that parent to pay for any of the child’s college costs. Also, if the child receives the post-secondary education subsidy, they will be required to report their grades to their parents ten days within receiving them and to maintain a grade point average above the median range.

Recent Iowa Supreme Court Decision

In the case recently ruled upon by the Iowa Supreme Court, the mother and father separated when their only daughter was an infant. The mother remarried a man who had a high income and enjoyed a comfortable lifestyle. The father remarried as well, had three additional children and then divorced for a second time. He earned a fairly good income, however unlike the mother, he had a high amount of debt and a very small net worth.
In its decision, the Court found there was good cause for the post-secondary education requirement because the daughter was 19 years old, doing well in college, and she was working part-time and contributing financially to her own college education, but not able to support herself entirely on her own. The Court considered the financial outlook of the father and noted that the same amount of sacrifice required of a parent in the support of a minor child is NOT required in the payment of a post-secondary education subsidy. They find that the father does not lead an extravagant lifestyle, and while he does make a good income, he should not be required to pay as high of a subsidy as determined by the Court of Appeals.
The Court affirmed the finding of good cause in requiring the post-secondary education subsidy, however reduced the amount the father was required to pay significantly.

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