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In re Marriage of Erpelding

Court of Appeals of Iowa

June 21, 2017

IN RE THE MARRIAGE OF JODI LYNN ERPELDING AND TIMOTHY JOHN ERPELDING Upon the Petition of JODI LYNN ERPELDING, Petitioner-Appellant/Cross-Appellee, And Concerning TIMOTHY JOHN ERPELDING, Respondent-Appellee/Cross-Appellant.

         Appeal from the Iowa District Court for Kossuth County, Patrick M. Carr, Judge.

         Jodi Erpelding appeals the economic provisions of the decree dissolving her marriage to Tim Erpelding, and Tim cross-appeals the children's split physical care. AFFIRMED AS MODIFIED AND REMANDED.

          Thomas W. Lipps of Peterson & Lipps Law Firm, Algona, for appellant.

          Matthew G. Sease and Christopher R. Kemp of Kemp & Sease, Des Moines, for appellee.

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

          TABOR, Judge.

         Jodi Erpelding appeals the economic provisions of the decree dissolving her marriage to Tim Erpelding, and Tim cross-appeals the physical-care arrangement and his child-support obligation. After our de novo review, we find the district court's provision for split care of the two brothers promotes the best interests of each child. Due to a scrivener's error, we remand for the district court to recalculate Tim's child support. We reject Jodi's claim she is entitled to reimbursement alimony but modify the decree to increase Jodi's traditional alimony from $1166 to $1666 per month. Resolving an issue of first impression, we conclude the prenuptial agreement's prohibition on the district court's award of attorney fees as to issues of parental responsibility and child support violates Iowa public policy. We remand for the district court to determine and assess the appropriate amount of Jodi's attorney fees for the trial and on appeal.

         I. Facts and Prior Proceedings

         Tim and Jodi lived together for five years on the Erpelding family farm before executing a prenuptial agreement in November 1997. Jodi discussed the agreement with her own attorney before signing it. At that time, Tim-a lifelong farmer-listed his net worth at more than $500, 000, while Jodi had a net worth of $41, 000. The parties married in December 1997.

         Tim farmed with his father in Kossuth County, east of Algona. Tim's father died a few years before the parties' dissolution, and Tim received both gifts and an inheritance from his father. Tim continued to operate the family farm with his brothers, who had other full-time employment and farmed only part time. Jodi, also from Kossuth County, works for the Iowa State Education Association (ISEA).

         The parties have two sons, W.E., who was born in 2001, and D.E., who was born in 2005. During the marriage, Jodi's work location changed from nearby Algona to Emmetsburg, and finally, to Clear Lake, which is about forty miles from the family farm. Jodi reduced her hours after W.E.'s birth and again after D.E.'s birth, generally working four days a week. Jodi's employer also provides her with another day off each week in June and July.

         Jodi suffered a heart attack in September 2014, which she attributed to the stress of an unhappy marriage. When she and Tim separated in January 2015, Tim moved in with a sibling who lived nearby. Tim and his attorney aided Jodi's negotiations for a house in Clear Lake, closer to her office, as the transaction occurred before Jodi had obtained counsel. Using a bank loan, Tim financed the Clear Lake home for Jodi. In February 2015, Jodi filed a petition to dissolve the marriage.

         In the decree dissolving their marriage of eighteen years, the district court awarded Jodi and Tim joint legal custody and split the physical care of the parties' two sons. On the financial side, the district court found the parties' prenuptial agreement was "clear and unambiguous" in requiring all property each party owned before the marriage, as well as all property each party acquired during the marriage in his or her individual name, to be awarded "to the party in whose name it is registered or who otherwise owns the same" in the event of a dissolution. Based on the parties' agreement, the court awarded Jodi assets worth approximately $810, 000 and no debt. Similarly, Tim received his assets, including inherited and gifted assets and a debt obligation of $944, 454, for $6, 300, 000 in net assets.[1] The court rejected Jodi's request for reimbursement alimony but awarded her traditional alimony in the amount of $1166 per month. Jodi appeals, and Tim cross-appeals.

         II. Scope and Standard of Review

         In this equitable proceeding, we review de novo. See In re Marriage of Probasco, 676 N.W.2d 179, 183 (Iowa 2004). "[W]hen considering the credibility of witnesses, we give weight to the district court's findings of fact, but we are not bound by them." Id. "No hard and fast rules govern the economic provisions in a dissolution action; each decision turns on its own uniquely relevant facts." In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). Generally, we will disturb the trial court's ruling only when there has been a failure to do equity. Id.

         III. Split Physical Care

         During the parties' initial separation in the spring and summer of 2015, they shared physical care while W.E. and D.E. finished the second semester of third grade and eighth grade, respectively, at Bishop Garrigan, Algona's parochial schools. But neither party requested shared care at trial. In the summer of 2015, Jodi sought temporary physical care of both boys, and the parties agreed to mediate the issue with former justice David Baker. In August 2015, the parties agreed to a pre-decree plan for the upcoming 2015-16 school year-D.E. lived in Clear Lake with Jodi and attended the local public school for fourth grade, and W.E. lived with Tim on the farm and attended ninth grade at Garrigan high school in Algona.

         Before trial, Tim asked the court to appoint a guardian ad litem (GAL), suggesting attorney Gregory H. Stoebe. Jodi resisted. On October 23, 2015, the court appointed Stoebe as the GAL for the children. The GAL conducted interviews, questioned the parties at trial, and compiled a posttrial report dated March 2, 2016. The GAL recognized "the long-established rule is to keep children together whenever possible" but concluded:

I see nothing beneficial by forcing one child or the other to relocate. Both are thriving. The parents are commendably getting along well on issues of the children. I see only positives for the children into the future with current living [arrangement] solemnized by the [c]ourt. To uproot them now and reshuffle residence, visitation, friends, school, etc. may well generate more court activity of a very dark and damaging nature.

         The district court's July 28, 2016 dissolution decree discussed the GAL's report as one of eleven factors it analyzed, stating the GAL provided "an excellent summary" of the relevant evidence and "has recommended" the court implement "a split physical care arrangement. Although the court will not abdicate to the [GAL] its duty to decide the custody issues in this case, the court is grateful for the work [of the GAL] and has accorded respectful consideration" to his report and recommendations. The court also provided a thoughtful analysis of the other ten factors-the characteristics of each child, the emotional, social, moral, material, and educational needs of each child, the characteristics of each parent, the capacity and interest of each parent to provide for the needs of the child, the interpersonal relationship between the child and each parent, the interpersonal relationship between the siblings, the effect on each child of continuing or disrupting an existing custodial status, the stability and wholesomeness of each home environment, the child's preference, and the court's available alternatives. After considering all the factors and recognizing the preference against split care made its decision "a close one, " the court ruled, "in this case, split physical care is in the best interests of each child."

         Under the decree, the boys are together every Wednesday and every weekend, alternating between Clear Lake and the farm. Each parent has ten days of summer visitation each year with both boys. The district court recognized implementation of the schedule is "a little complicated, " and it expected the parties to be "flexible and accommodating with each other and with their sons. The boys are at an age where their views are entitled to respectful consideration by their mother and father."

         In his cross-appeal, Tim argues the family's circumstances are not "the unique situation in which split care should be awarded, " quoting the applicable legal standard:

There is a presumption that siblings should not be separated. We have long recognized that split physical care is generally opposed because it deprives children of the benefit of constant association with one another. "The rule is not ironclad, however, and circumstances may arise which demonstrate that separation may better promote the long-range interests of children." Good and compelling reasons must exist for a departure.

In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992) (citations omitted).

         In the decree, the court found both Tim and Jodi "are good parents" who will cooperate "to see that the two boys are together as much as possible." The court believed Jodi, as compared to Tim, "might be a bit more attuned to the many non-verbal, intuitive queues of a child's unstated emotional needs." The court also found "some truth" to the fact Tim worked hard and became more involved in the boys' lives following the separation. But the court observed Tim "seems able to overlook minor bumps in the road, trying to guide as much by example and inaction as forcible intervention." In sum, the ...

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