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In re Marriage of Burington

Court of Appeals of Iowa

February 6, 2019


          Appeal from the Iowa District Court for Winneshiek County, Richard D. Stochl, Judge.

         Amber Burington appeals the physical care and property division provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.

          Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C., Decorah, for appellant.

          Beth A. Becker of Tremaine & Becker Law, Sumner, for appellee.

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

          BOWER, JUDGE

         Amber Burington appeals certain provisions of the decree dissolving her marriage to Christopher (Chris) Burington. We affirm the district court's decision placing the children in the parties' joint physical care. We find the court did not improperly value the assets awarded to Chris and no offset needs to be made for the cash values of the parties' life insurance policies. The property division should be modified to set aside to Amber $20, 000 from the value of her 401(k) account in recognition of her premarital assets. In order to equalize the parties' 401(k) accounts, Chris should receive $11, 899 from Amber's 401(k) through a qualified domestic relations order. We affirm the district court's decision denying Amber's request to require Chris to maintain a life insurance policy naming the children as beneficiaries. We determine each party should pay his or her own appellate attorney fees.

         I. Background Facts & Proceedings

         Chris and Amber were married in 2008. They have two children, N.B., born in 2010, and H.B., born in 2015.

         The parties lived in Cedar Rapids for several years. Throughout the marriage, Amber has worked for Transamerica Life Insurance Company as an accountant, earning about $80, 000 per year. Chris was initially employed as an auto mechanic, but he later quit his job and started a business driving a limousine, which he purchased contrary to Amber's wishes. The limousine business was never financially successful. In 2014, the parties moved to northeast Iowa, where they both had family. Amber now works remotely, although she is required to travel to Cedar Rapids a few times a year for business. Chris obtained employment as an auto mechanic for Einck's Services, where he earns about $35, 000 annually.[1]

         The parties separated in the spring of 2016. Soon thereafter, Chris purchased a stock car and trailer. He stated he traded in a motorcycle he owned prior to the marriage for the stock car. One of Chris's hobbies is stock car racing. He spends every Friday evening from May to August attending races. Chris was also involved in a pool league on Wednesdays.

         In June 2016, Amber made gifts to family members from bank accounts held in her name. She gave her sister, Nichole Ackerson, $10, 000 to use towards a down payment on a house. Amber also gave her parents $13, 000. She also took all of the money out of two joint accounts-$578.08 from one account and $9017.28 from another-which she used to pay her student loans, the debt on a vacuum cleaner, and other expenses. Amber informed Chris she was closing the joint bank accounts.

         Amber filed a petition for dissolution of marriage on July 5, 2016. In an order on temporary matters filed on September 7, 2016, the district court placed the children in Amber's physical care, granting Chris visitation on alternating weekends and two evenings each week. Chris was ordered to pay child support of $685 per month. The dissolution trial was held on August 30 and 31, 2017.

         In the dissolution decree, [2] filed on April 11, 2018, the district court granted the parties joint legal custody of the children and joint physical care.[3] Amber was ordered to pay $439 per month in child support. The court set aside to Chris as premarital assets: (1) the stock car, valued at $3000, because it was obtained by trading in a motorcycle Chris owned before the marriage; (2) Chris's tools, except for tools worth $5000, which the court found he acquired during the marriage; and (3) an IRA valued at $1341. Amber's pension from the State of Minnesota, which accrued before she married Chris, was set aside to her. Not including the parties' retirement funds, the court awarded Chris assets worth $16, 670 and Amber assets worth $16, 164. The court found, however, Amber dissipated assets worth $23, 000 by the gifts to her sister and parents, and it ordered Chris would receive one-half of this amount-$11, ...

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