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In Re the Marriage of Maria T. White and Rodney E. White

February 13, 2013

IN RE THE MARRIAGE OF MARIA T. WHITE AND RODNEY E. WHITE UPON THE PETITION OF MARIA T. WHITE, PETITIONER-APPELLEE,
AND CONCERNING RODNEY E. WHITE, RESPONDENT-APPELLANT.



Appeal from the Iowa District Court for Jefferson County, Annette J. Scieszinski, Judge.

The opinion of the court was delivered by: Doyle, J.

Rodney White appeals economic and custodial provisions of a decree dissolving his marriage to Maria White. AFFIRMED.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

Rodney White appeals the economic and custodial provisions of a decree dissolving his marriage to Maria White. He alleges the district court erred in (1) imputing income to him based on the court's determination of his "earning capacity"; (2) valuing and equitably distributing the parties' marital assets and debts; (3) reducing his hours of visitation in comparison to the parties' temporary visitation schedule; (4) failing to consider relocation by Maria; and (5) awarding Maria trial attorney fees. Maria requests appellate attorney fees. Upon our review, we affirm.

I. Background Facts and Proceedings.

Rodney ("Rod") and Maria married in 1999. They have three children, born in 2000, 2005, and 2008. The parties separated in January 2011, and Maria filed a petition for dissolution of marriage on February 28, 2011. Both parties continued to live in Mt. Pleasant, Iowa.

Trial on the petition was held in February 2012. At the time of the trial, Rod was thirty-four years old. Rod competed in the 1996 and 2000 Olympic Games in the sport of archery. Thereafter, he began numerous home-based businesses related to his love of archery and hunting. At the time of trial, his main business was Land and Game, a brokerage wherein he sold mostly recreational land. At trial, he explained that his business served a niche market, dealing with high-end buyers who want to buy a farm and customize it to fit their needs from a hunting perspective. He testified there "[were not] a whole lot of sales, and . . . with the economy, [his business] had kind of crashed a bit." Nevertheless, he still almost exclusively sold hunting properties. He testified that business, along with a few other odd property jobs, including habitat work, building food plots, and removing timber, were his only sources of income at that time, and his only focus.

The amount of Rod's income was disputed. He testified at trial his annual income was $18,000, based upon an average of his five prior year's self-employment income. However, at his prior deposition, he testified he hoped he could earn up to $50,000 a year. When asked if he was capable of earning more than $18,000 a year, Rod answered it was dependent upon numerous factors. At the time of trial, he testified he had only two residential listings, but in some weeks he worked as many as fifty hours. He also testified that he and two partners had recently invested quite a bit of money and time in a business venture, but ultimately they were not able to get the project going. He acknowledged that during the pendency of the dissolution proceedings he deposited an average of $5000 a month into his bank account, and he was spending that amount. Additionally, he testified that he would be paying rent to his parents in the amount of $1400 per month, or $16,800 a year. When pressed as to how he would pay that amount given his stated income of $18,000 a year, he testified "based on the past . . . I have not had an issue paying my bills whatsoever," but he would not further account for any income.

At the time of trial, Maria was thirty-three years old. During the parties' marriage, Maria was a full-time homemaker and bookkeeper for Rod's businesses. She had recently acquired her real estate broker's license, and she had an office in North Liberty, Iowa. At the time of trial she was commuting from her home in Mt. Pleasant to the office. Maria's income of $19,619 was undisputed.

Another issue at trial was the parties' ability to communicate. Rod testified that Maria was unwilling to communicate with him and became angry when discussing finance-related issues. He also testified she used the children as a bargaining chip, holding him to the letter of the district court's temporary visitation order when he did not do what she wanted. Yet, also admitted into evidence were Maria's recordings of a few phone calls she had with Rod early in the case, wherein Rod was angry, rude, uncooperative, and, at times belittling, while she, with the knowledge she was recording, was generally unresponsive. Rod testified that, in June or July 2011, he told Maria he would only communicate with her via text messages or email, based upon his first attorney's recommendation and with the knowledge he planned to use the writings as trial evidence. The text messages back and forth from the parties were admitted, and they generally showed the parties communicating well, including Maria asking and Rod accepting that the children have extra time with him when she was unavailable.

During the parties' marriage, Maria and Rod formed a joint partnership, White Oak Properties, LLC, also known as White's Labs, in which Maria bred and sold pedigreed dogs. Maria testified after the parties' separation and her moving from the marital residence, she no longer had a place to take care of the dogs and could not afford to continue paying the expenses related to the business. She testified she and her attorney sent Rod's first attorney several letters asking if Rod wanted the business or what his wishes were concerning the business. Rod testified he believed he only saw one letter from his attorney at that time.

Maria testified she then began selling the puppies and dogs because she could not care for them and some were sold for prices lower than her normal asking price. She testified a few puppies were even given away for free, due to the necessity to find them a person who could provide for them. Maria sent Rod text messages after selling the dogs so he would know their selling prices. Maria further testified that the business had been completely wound down and did not have any value left. Rod disputed the value of the business, assigning it a value of $23,500. He testified he believed there were more dogs than Maria claimed, and he stated he believed the negative income reported on their tax returns was not a true representation of the income realized from the business. However, he admitted he was not aware of any assets owned by the business.

Rod testified about his work in improving the marital property to increase the sales amount. He testified the sellers required numerous repairs upon the property that he himself handled, and he testified he believed he should be compensated for the work he performed. However, he admitted the sellers were friends of his and allowed him to live rent-free in the house for two months after the closing when he was making the repairs.

Maria testified that Rod sold marital property, including his truck, a tractor, a mower, a drill seeder and some other equipment. She testified that of the approximately $31,500 in equipment sold, she received nothing. Rod testified he did sell the equipment but testified he did so to make payments on the parties' credit card debt and to pay off his truck. However, he did not have receipts showing where the money went.

Another issue disputed by the parties was a realty franchise they purchased. Maria testified the franchise was worth $5000, and they had received an offer for that amount, but the offer was ultimately withdrawn because Rod did not respond. Rod testified that the offer had a non-compete agreement in it that would conflict with his recreational land sales. He said his prior attorney responded to the offer but they never heard back. He testified he believed the business had no value because the only thing it "really came with was protected territory around Mt. Pleasant."

Both parties requested primary physical care*fn1 of the children. Rod testified that he believed he should have primary physical care because of Maria's communication issues and her occasional late working hours. Maria testified that she had always been the children's primary caregiver, and it was in the children's best interest that she continue as such. The older children's therapist also testified that he believed shared custody was not in the parties' children's best interests, but he acknowledged his personal belief was that shared custody was never in a child's best interest. He recommended essentially that the temporary visitation schedule be continued because it was working well for the children, and they had already become accustomed to that routine.

Another issue in dispute was whether or not Maria would be moving to where her office was located. Rod testified Maria had indicated that she would be moving to Iowa City after the divorce, and other witnesses also so testified. Maria testified she had no plans to do so at that time.

On April 9, 2012, the district court entered its decree dissolving the parties' marriage. The decree's opening paragraph states:

In many ways, this case is one of paradox. Throughout the trial record some claims are boldly and repeatedly made, despite obvious contradiction in truth. In all, the parties have spent over $60,000 litigating their disputes in this case, and now the spin stops: the true state of the facts is now declared.

Ultimately, the court found that Rod was not credible, specifically noting:

Early in this litigation he ruled out communication with Maria except in writing-meaning by text or email-so that he could arm himself with proof of what was said between them. He claims that he was worried about being falsely charged with domestic violence-even though there is no history of abuse in the household, and never any reports made to law-enforcement authorities. Rod's unusual tact in suppressing communication opportunities was done, apparently, with the acquiescence if not the advice of his initial litigation counsel. The proof he kept bears indicia of being orchestrated for litigation purposes. Rod compiled records of conversations that purport to prove devotion to his children. For example, he adopted a practice of lacing his written comments with the important principles his attorney said the trial judge would look at in a custody suit.

The court imputed to Rod an annual gross income of $45,000. The court granted Maria primary physical care of the children, and it set forth a visitation schedule for Rod that had less visitation time than was provided in the temporary visitation order. The court specifically found:

Rod unfairly criticizes Maria's parenting abilities and in both testimony and demeanor, he exhibits a deep resentment toward her. He cannot acknowledge a respect for any of her accomplishments as a parent-even those delivered over all the years she was a full-time homemaker and essentially, the children's full-time caretaker. Rod's charges about her shortcomings are unproven; moreover, most are proven to be wholly false. His assertions are nonetheless, relentless and intended to burden her.

The extraordinary energy and time Rod uses to belittle Maria in this trial record is, at best, a diversionary litigation tactic when viewed in the context of Maria's solid record of caregiving.

The court noted Maria had no present intention to move and did not further discuss the matter in its ruling.

Relevant to issues raised here, the court, in distributing the parties' marital assets and debts, found the parties' partnership White Oak Properties/White's Labs had no value. The court found the appraisal, done at Maria's request, was "substantially accurate in its recitation of the scope of the parties' personal property and in its fair market valuations." The court found the appraisal charge should be considered a marital obligation. Additionally, the court found most of the money Rod obtained in selling marital equipment was not accounted for and should be included in the economic settlement. Concerning the remaining funds held in escrow from the sale of the marital home, the court found the net proceeds should be shared. Finally, the court ordered Rod to reimburse Maria for $10,000 of her legal costs sustained in the litigation.

Rod now appeals.

II. Scope and Standards of Review.

We review dissolution of marriage cases de novo. Iowa R. App. P. 6.907; In re Marriage of Veit, 797 N.W.2d 562, 564 (Iowa 2011). We decide the issues raised anew, but we do so with the realization that the district court possessed the advantage of listening to and observing firsthand the parties and witnesses. In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we credit the factual findings of the district court, especially as to the demeanor and believability of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Similarly, we "ordinarily defer to the [district] court when valuations are accompanied by supporting credibility findings or corroborating evidence." In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999); see also In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007). "Ordinarily, a trial court's valuation will not be disturbed when it is within the range of permissible evidence." In re Marriage of Wiedemann, 402 N.W.2d 744, 748 (Iowa 1987). Stated another way, we afford the district court considerable latitude in its property distribution determination pursuant to the statutorily enumerated factors, and disturb its finding only when the award is inequitable. In re Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005). In custody matters, our overriding concern is the best interests of the children. Iowa R. App. P. 6.904(3)(o). Finally, we note that because we base our decision on the unique facts of each case, precedent is of little value. In re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009).

III. Discussion.

On appeal, Rod contends the district court erred in ...


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