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In re Marriage of Dow

Court of Appeals of Iowa

April 18, 2018

IN RE THE MARRIAGE OF SHANTEL N. DOW AND DANIEL D. DOW Upon the Petition of SHANTEL N. DOW, Petitioner-Appellee, And Concerning DANIEL D. DOW, Respondent-Appellant

          Appeal from the Iowa District Court for Lucas County, David L. Christensen, Judge.

         Daniel Dow appeals from the support and economic provisions of the decree dissolving his marriage to Shantel Dow.

          Heather M. Simplot of Harrison, Moreland, Webber & Simplot, P.C., Ottumwa, for appellant.

          Bryan J. Goldsmith of Gaumer, Emanuel, Carpenter & Goldsmith, P.C., Ottumwa, for appellee.

          Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          DANILSON, Chief Judge.

         Daniel Dow appeals from the support and economic provisions of the decree dissolving his twenty-eight-year marriage to Shantel Dow. He objects to the court ordering him to pay six months of child support for the couple's fourth child. Daniel contends he is unemployed and cannot afford to pay spousal support. He also objects to the terms of the court's qualified domestic relations order (QDRO).

         Upon our de novo review, we find no reason to disturb the court's rulings as to spousal support, child support, and the distribution of debts. We modify the order as to the terms of the QDRO, eliminating any requirement that Shantel be identified as a contingent annuitant and the parties' children as contingent alternate payees. We award no appellate attorney fees.

         I. Background Facts and Proceedings.

         This case involves the dissolution of a long-term marriage during which Daniel was the primary wage earner and Shantel was the primary caregiver for the parties' four children. Daniel and Shantel were married in 1988, and they had children born in 1994, 1995, 1997, and 1999. The family moved several times for Daniel's positions as an educator. Daniel obtained his master's degree in school administration in 2002. From 2004 to 2016, Daniel was a school principal in Iowa. He earned $80, 922 during the 2015-2016 school year.

         Shantel is a college graduate with a degree in liberal studies. She also has taken post-graduate classes in nonprofit management. She has had a number of jobs during the marriage, including as a manager of a youth orchestra, as a grant writer, and (from 2011 to 2014) as the director of Chariton Chamber and Development. Shantel is also a performing arts booking agent with Dow Artists, Inc., a subchapter S corporation. She was diagnosed with cancer in 2014 and underwent chemotherapy, radiation, and surgery. In February 2015, she was no longer able to continue working for the Chamber. After her cancer treatment, Shantel took classes and obtained a substitute teacher license. She works as a substitute teacher, earning about $100 per day, and continues to book artists and events through Dow Artists.[1] With regard to her income from Dow Artists, Shantel stated the corporation receives a twenty-percent commission of the agreed-upon fee for the event and Shantel "tr[ies] to take [ten] percent off of that commission personally, but there's a lot of times I can't take that much because the business needs to pay bills."

         The parties separated in June 2015 and Shantel and the youngest (and only minor) child moved out of the marital residence. At the time of separation, Shantel's source of income was from substitute teaching and Dow Artists. During this period of maintaining separate residences, David paid no child or spousal support.

         Shantel filed for dissolution of the marriage on February 3, 2016. She sought child support for the couple's fourth child, who planned to graduate from high school in May 2017. Shantel also asked that Daniel pay permanent spousal support and that the court make an equitable distribution of the parties' assets.

          At trial, Daniel testified his contract with the school was not renewed for the 2016-2017 school year. He was receiving net unemployment benefits of $484 per week. He asserted he is not able to find employment as a principal in the area, and that he and his sons are starting a contracting business. Daniel claimed he could not afford to pay child support or spousal support. He listed monthly living expenses of $3849.

         Shantel's four-year average earnings at the time of trial was approximately $26, 248 per year. She testified she had "about $500" in an Iowa Public Employees' Retirement System (IPERS) account and about $1400 in a 401k account. She listed monthly living expenses of $3118. Shantel opined Daniel would return to work as an administrator once the dissolution proceedings are complete. Daniel testified his "interest [in doing so] has dropped" and he is "helping [his] eldest son get his feet on the ground in construction."

         The parties owned 220 acres of land and a house, which were subject to outstanding loans-$310, 518.80 was owed on the loan on the land; $25, 980.59 was owed on the loan for a pole barn; and approximately $186, 000 was owed on the family residence. Both parties agreed the property and the house should be sold and the net proceeds (anticipated to be about $687, 000) evenly distributed.

         On November 29, 2016, the district court entered a decree of dissolution and placed the parties' minor child in Shantel's physical care. The court determined Daniel was temporarily unemployed and had a "significantly higher earning capacity than" Shantel. The court determined Daniel had an earning capacity of $72, 914.50, and Shantel had an earning capacity of $26, 247.75. The court ordered Daniel to pay child support in the amount of $799.64 per month beginning December 1, 2016, and continuing until the minor child graduated from high school or became emancipated, whichever occurred earlier. The court also ordered Daniel to pay Shantel traditional alimony in the sum of $1000 per month until she turned sixty-six and $500 per month thereafter until either party died. The court ordered the parties' house and property sold and the net proceeds distributed equally. And while Daniel was allowed to continue to reside in the marital home, the court ordered him to be solely responsible for the real estate payments pending the sale.

         The court found that under the Benson formula, Shantel was entitled to an appropriate percentage of the 168 months of Daniel's retirement benefits-all of which arose during the parties' marriage. The court also ordered Daniel to list Shantel as the death benefit beneficiary and list the parties' four children as contingent alternate payees.

         Daniel appeals, asserting Shantel should not have been awarded spousal support and the child-support amount was improperly calculated. He also objects to terms of the ordered QDRO and the court's distribution of debts.

         II. Scope and Standard of Review.

         Dissolution proceedings are tried in equity, and our review is therefore de novo. Iowa Code § 598.3 (2016); In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g). "[W]e accord the trial court considerable latitude in making this determination [of spousal support] and will disturb the ruling only when there has been a failure ...


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