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In re Marriage of Dyvig

Court of Appeals of Iowa

August 16, 2017

IN RE THE MARRIAGE OF EMILY DYVIG AND BRANDON DYVIG Upon the Petition of EMILY DYVIG, Petitioner-Appellant, And Concerning BRANDON DYVIG, Respondent-Appellee.

         Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.

         An ex-wife appeals the economic provisions of a dissolution decree. AFFIRMED.

          Andrea M. Flanagan of Flanagan Law Group, P.L.L.C., Des Moines, for appellant.

          James W. Thornton of Thornton & Coy, P.L.L.C., Ankeny, for appellee.

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

          TABOR, Judge.

         Emily 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 attorney fees.

         I. Facts and Proceedings.

         Emily 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.

         Brandon and Emily married in September 2004, and had three children, who were born in 2005, 2007, and 2010.[1] Before the birth of their oldest child, Emily had serious health concerns.[2] 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.[3]Medical bills for Emily and the children also affected their finances.

         Brandon 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 children.

         Brandon's 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.

         In 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.

         In September 2015, Emily made plans to return to work. Also that month, the parties filed a stipulation on temporary matters, which the court adopted.[4]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.

         Emily 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."

          The 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.[5]

         The 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.

         A two-day trial was held in late July 2016.[6] At the start of trial, Emily sought to have the parties' mediation agreement set aside. The court declined.

          On August 15, 2016, the court entered its decree, granting joint legal custody and physical care to Emily with visitation for Brandon.[7] 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.[8] 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 ...


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