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In Re the Marriage of Joseph Paul Michael Berger and Cira Lynn

April 24, 2013

IN RE THE MARRIAGE OF JOSEPH PAUL MICHAEL BERGER AND CIRA LYNN OGNIBENE-BERGER UPON THE PETITION OF JOSEPH PAUL MICHAEL BERGER, PETITIONER-APPELLANT, AND CONCERNING CIRA LYNN OGNIBENE-BERGER, RESPONDENT-APPELLEE.


Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.

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

Joseph Berger appeals from the provisions of the decree dissolving his marriage to Cira Berger. AFFIRMED.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

After twenty-four years of marriage and five children, Joseph (Joe) and Cira Berger divorced. The district court ordered Joe, an obstetrician/gynecologist, to pay Cira, a stay-at-home mother, $8000 per month in spousal support for sixty months and then $6000 per month until Cira turns sixty-five, remarries, or either party dies. The court also divided the parties' significant marital assets.

On appeal, Joe raises four issues. First, he contends the amount of spousal support is inequitable. Second, he objects to the requirement that he maintain a $1,000,000 life insurance policy with Cira as the sole beneficiary. Third, Joe asks for the property distribution to be modified to reflect Cira's dissipation or waste of marital assets. Fourth and finally, he contends he should be awarded the family's golden retriever, Max. Cira requests an award of her appellate attorney fees.

On de novo review, we find that the district court acted equitably in fixing the amount and duration of spousal support payable to Cira. Because we decline to modify the spousal support provision of the decree, we likewise decline to modify the provision relating to the life insurance policy. Because Joe failed to show Cira dissipated marital assets during the separation, we do not disturb the property distribution. We also affirm the award of Max to Cira. Finally, we award Cira $4000 in appellate attorney fees.

I. Background Facts and Proceedings.

Joe and Cira were married in July 1987. At the time, Joe had earned his undergraduate degree in biology from Loras College and was attending medical school at the University of Iowa. Cira also graduated from Loras College, earning a bachelor's degree in classical studies. She worked at an Arby's restaurant and then as a pharmacy technician to support Joe during his studies.*fn1

In May 1990, after Joe finished medical school, the parties moved to Tennessee for Joe's residency. Cira continued working as a pharmacy technician until she became pregnant with twins and had to quit due to the severe morning sickness she experienced. The twins, Zachariah and Alexandria, were born in May 1992. Their third child, Nicholas, was born in November 1993. Jacob followed in October 1995. The parties agreed Cira would stay home and care for their young family. Their youngest child, Victoria, was born in 2003.

After several moves in the decade following Joe's graduation from medical school, the family eventually settled in Dubuque. They purchased a five-bedroom home on Brandywine Park Drive for $300,000. The property is currently assessed at $330,000, but has an appraised value of $265,000. The mortgage on the home at the time of dissolution was approximately $14,500.

Joe is a board-certified obstetrician and gynecologist at Medical Associates. He earns a base salary of $225,000, which is supplemented based on how many patient visits, surgeries, and deliveries he performs. His income grew steadily to a high of $718,072 in 2009 before decreasing in 2010 and 2011. His average gross income over the past six years was $633,122.

Joe filed a petition to dissolve the marriage on November 9, 2011. On the same day, he petitioned for a civil domestic abuse protective order under Iowa Code chapter 236 (2011). The court entered a protective order removing Cira from the Brandywine home. After living in a hotel for approximately one month, Cira purchased a $398,000 home on Wedgewood Drive. The home was purchased on contract, using a $30,000 down payment she received from her parents. Cira spent approximately $23,000 of marital money to furnish the home and spent approximately $5000 on electronic equipment.

The court held trial on May 29, 2012. The parties agreed Cira would have physical care of Victoria and would share physical care of Jacob.*fn2 Although they agreed on the division of the majority of their personal and household items, the parties could not agree who would be awarded Max, one of their two dogs. Issues at trial included the division of the parties' monetary assets, Joe's child and spousal support obligations, and Cira's attorney fees.

The district court entered its decree dissolving the marriage on June 11, 2012. It ordered Joe to pay Cira $3500 in child support for two children and then $2500 per month for one child. The court also awarded Cira $8000 per month in spousal support for a period of sixty months, and $6000 per month thereafter until Cira reached the age of sixty-five, remarried, or either party died. Joe was ordered to maintain a life insurance policy of at least $1,000,000 death benefit payable to Cira until Victoria reached the age of eighteen, and then $250,000 thereafter as long as he had a spousal support obligation to Cira.

In dividing the assets, the court awarded each party property valued at $1,011,343.15. The court awarded Joe the Brandywine home, which had a net value of $250,500, and awarded Cira the Wedgewood home, which had no value as marital property. The court awarded Max to Cira. ...


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