IN RE THE MARRIAGE OF EMILY DYVIG AND BRANDON DYVIG Upon the Petition of EMILY DYVIG, Petitioner-Appellant, And Concerning BRANDON DYVIG, Respondent-Appellee.
from the Iowa District Court for Polk County, Michael D.
ex-wife appeals the economic provisions of a dissolution
M. Flanagan of Flanagan Law Group, P.L.L.C., Des Moines, for
W. Thornton of Thornton & Coy, P.L.L.C., Ankeny, for
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Dyvig (now Emily Abbott) appeals economic provisions in the
decree dissolving her marriage to Brandon Dyvig. She asserts
the district court should have: (1) rejected the parties'
mediation agreement resolving financial issues, (2) awarded
her alimony, (3) required Brandon to pay a larger share of
uninsured medical expenses, and (4) ordered Brandon to pay
her trial attorney fees. Both Emily and Brandon seek
appellate attorney fees. Finding the district court properly
adopted the mediation agreement and equitably resolved the
remaining issues, we affirm. We decline to award appellate
Facts and Proceedings.
and Brandon, both from Webster City, started dating when she
was in eighth grade and he was in eleventh grade. They
stopped dating while Brandon was in college but resumed their
relationship in 2001. At that time, Brandon was working at
Winnebago Industries, a recreational vehicle (RV)
manufacturer, in Forrest City. Emily lived at home, attended
community college, and worked as a licensed practical nurse.
In 2003, Brandon transferred to Winnebago in Seattle. After
several months, Emily left school and joined him in Seattle,
where she found a full-time job at a hospital.
and Emily married in September 2004, and had three children,
who were born in 2005, 2007, and 2010. Before the birth
of their oldest child, Emily had serious health
concerns. After that child was born, Emily worked as
a nurse one day per week, and Brandon worked from home on
those days. In the spring of 2007, they bought a house in
Seattle. Because RV sales were good, Brandon earned as much
as $140, 000 a year. But the parties started experiencing
financial trouble in the 2009 recession. House prices
declined; and Brandon's sales volume slowed
considerably-in one of his last years in Seattle, he earned
only his $52, 000 base pay. The parties could not afford
their home.Medical bills for Emily and the children
also affected their finances.
accepted a new position at Winnebago in Minneapolis shortly
after the birth of their third child in October 2010, and the
family moved in the spring of 2011. They were happy to be
back in the Midwest where both sets of grandparents resided
but lost more than $150, 000 in a short sale of their Seattle
house. In Minnesota, the parties rented a residence and tried
to dig out of their financial problems. Emily was not
employed, devoting her efforts to caring for the three young
position with Winnebago in Minnesota required frequent
travel. But in the fall of 2012, he accepted a new job with
Mechdyne Corporation, a software developer, in Marshalltown,
Iowa, where he worked more regular hours and was home on the
weekends. Brandon's base pay at Mechdyne was $70, 000,
but his overall yearly income varied according to his
commissions. The parties bought a home in Ankeny, and Brandon
commuted to Marshalltown. In 2013, Emily worked twelve-hour
shifts as a nurse on the weekends for one year. But
Emily's nursing license was suspended for misconduct and
she was unable to work as a nurse for the next year, which
increased the family's existing financial stress.
August 2015, Emily was allowed to resume employment as a
nurse. Also that month, Emily filed a petition to dissolve
the eleven-year marriage, and the parties separated. Emily
remained in the family home, and Brandon eventually moved
into a duplex in Ankeny.
September 2015, Emily made plans to return to work. Also that
month, the parties filed a stipulation on temporary matters,
which the court adopted.The parties agreed to file a joint
chapter 7 bankruptcy. In the dissolution case, both parties
filed an affidavit of financial status in December 2015.
Emily's conclusory affidavit did not list any IRA
retirement accounts. Brandon's affidavit listed $2500 in
Scottrade IRAs and $95, 000 in his Mechdyne 401(k) account.
planned to move with the children to Webster City in the
summer of 2016 and live with her parents. Emily's father
advanced mortgage payments for their Ankeny home, and the
sale closed on June 1, 2016. Emily believed her father would
buy or rent a house in Webster City for Emily and the
children. Emily also told the custody evaluator "she was
unsure how much longer she would be working because she was
unsure if her income would be needed after the divorce."
Emily continued: "[T]he amount of child support would
determine her decision about future employment."
parties later abandoned their plan to file bankruptcy and
instead agreed to mediate their financial issues. After a
successful mediation, they entered into a "final
agreement relative to financial matters" on March 28,
2016. Noting approximate net proceeds of $40, 000 from their
pending home sale, they agreed to first repay $17, 920.72
owed to Emily's father and then use excess proceeds to
pay down other marital debts as follows:
a. Brandon will take out a loan on his 401 (k) to pay the
remaining balance of this debt.
b. Half of the amount of this indebtedness shall be taken
from Emily's share of the 401 (k).
c. Additionally, Emily's portion shall be reduced by $10,
000 for the offset of the vehicles.
April 5, 2016 uniform trial scheduling order instructed the
parties to file current financial statements ten days before
trial. Brandon complied, submitting a July 17, 2016 affidavit
that showed the house sale had closed and $25, 000 remained
in escrow for disbursement toward credit card debts.
Brandon's affidavit also showed his 401 (k) balance
remained at $95, 000 and his Scottrade IRA was now $97.80.
Emily did not file a new financial affidavit.
two-day trial was held in late July 2016. At the start of
trial, Emily sought to have the parties' mediation
agreement set aside. The court declined.
August 15, 2016, the court entered its decree, granting joint
legal custody and physical care to Emily with visitation for
Brandon. In calculating child support, the court
used Brandon's base pay of $70, 000, a "known
quantity." For three children, the court ordered Brandon
to pay $1139.65 per month, based on Emily's $33, 828 and
Brandon's $51, 551 net annual incomes. The court also
adopted Brandon's proposal that he pay Emily a percentage
of each commission he receives for child support by ordering
Brandon to pay 26.5% within seven days "while there are
three minor children to support." The court declined