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In re Marriage of Curtis

Court of Appeals of Iowa

August 7, 2019

IN RE THE MARRIAGE OF MISHA LEA CURTIS AND MARK WADE CURTIS Upon the Petition of MISHA LEA CURTIS, Petitioner-Appellee, And Concerning MARK WADE CURTIS, Respondent-Appellant.

          Appeal from the Iowa District Court for Adams County, John D. Lloyd, Judge.

         Mark Curtis appeals a decree of dissolution of marriage.

          Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar Rapids, for appellant.

          Rodney K. Maharry, Clive, and Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for appellee.

          Considered by Doyle, P.J., Mullins, J., and Vogel, S.J. [*].

          MULLINS, JUDGE.

         Mark Curtis appeals the decree dissolving his marriage to Misha Curtis. Mark challenges the spousal-support, child-support, property-distribution, and visitation provisions of the decree, as well as the court's award of trial attorney fees in favor of Misha. Misha requests an award of appellate attorney fees.

         I. Background Facts and Proceedings

         Affording deference to the district court's factual findings and credibility determinations in our de novo review of this equitable proceeding, we make the following factual findings. The parties met in 2004 and married in 2005. The marriage produced two children, I.C. and A.C., respectively born in 2006 and 2008. Misha has another child from a prior marriage, E.A., born in 2001, who resided with the parties during the marriage.

         Mark has an associate's degree in information technology. Misha has college degrees in animal science and nursing. Both are in good health. Mark started his own heating-and-cooling business in 2005; the parties are equal owners of the business. The parties jointly purchased a hardware store in 2012. Prior to purchasing the hardware store, Misha worked as a nurse. The parties mutually agreed Misha would cut back on her hours working as a nurse and devote more of her time to the hardware store. In 2013, a bakery was established in a building attached to the hardware store, which is also jointly owned by the parties.[1] The parties are also the joint owners of a limited liability company (LLC) which owns the buildings in which the heating-and-cooling, hardware-store, and bakery businesses are housed. The parties also purchased two rental properties on contract.

         When the parties purchased the hardware store in 2012, they ran it together. In 2013, an employee of the heating-and-cooling business quit, and Mark focused his efforts on that business, which resulted in Misha running the hardware store. Misha had also run the bakery since its inception in 2013. This dynamic continued until around October 2016, when the parties agreed Mark would discontinue the heating-and-cooling business. At this point, Mark decided he wanted to pursue employment as an electrician. Mark was unable to find a local job, but he found an electrician job in Minnesota, which included a substantial increase in pay. Mark maintained this employment until July 2017. During this period, Mark lived in Minnesota and only visited the family on weekends. He then moved back to Iowa and began working as an electrician for another employer. Mark was terminated from this position in October. Mark then began receiving unemployment. While receiving unemployment, Mark began rebuilding the heating-and-cooling business.

         At the time of trial, Misha was pursuing her master's degree in nursing education and was twenty credits away from obtaining the same. Misha continues to work as a nurse at Greater Regional Medical Center, but only on an as-needed basis, which is usually about once every six weeks. She earns $29.00 per hour and brings in between $4000 and $5000 per year from nursing. Her primary employment is at the hardware store and bakery. She makes about $1050 per month from those businesses. Misha is also a nursing educator. She teaches eight hours per week from January through May and earns $29.50 per hour, which amounts to annual income of $4720. Finally, Misha earns in the neighborhood of $3900 per year working at a summer camp. Misha conceded in her testimony she could earn significantly more money as a nurse if she did not have to manage the businesses.

         Mark moved out of the marital home in September 2017. Shortly thereafter, Misha petitioned for dissolution of the parties' marriage. In December, Misha moved for a temporary-matters hearing concerning temporary custody and financial matters. The parties submitted child-support-guidelines worksheets and affidavits of financial status. Misha sought physical care while Mark sought shared care. Misha identified her gross annual income as $26, 000[2] and imputed income to Mark in the amount of $70, 000. Mark identified Misha's gross annual income as $32, 000 and his as $35, 516.[3]

         In February 2018, the court entered a temporary order granting the parties joint legal custody and awarding physical care to Misha, subject to visitation for Mark every other weekend and every Tuesday and Thursday evening from 4:00 to 8:00 p.m.[4] The court ordered Mark to pay temporary child support in the amount of $744.55.[5]

         Trial was held over four days in May and June. The court entered its findings of fact, conclusions of law, and order in August. The court's distribution of assets and liabilities[6] amounted to net assets in the amount of $333, 920 for Mark-which included all the business assets and rental properties-and $7563 for Misha. The court ordered Mark to pay Misha an equalization payment in the amount of $150, 000, shifting the net assets for Mark to $183, 920 and for Misha to $157, 563. As part of its property distribution, the court additionally ordered Mark to pay for $20, 000 of Misha's attorney fees, further reducing his net assets from the property distribution to $163, 920.

         Because the "property division . . . effectively removed [Misha] from the work force" and she was in the process of obtaining her master's degree which would give her a source of income from teaching, the court awarded Misha rehabilitative spousal support for three years. The court ordered Mark's monthly spousal-support obligation to be $3000 for the first year, $2000 for the second year, and $1000 for the third year.

         The court awarded Misha physical care of the children and provided Mark with visitation every other weekend from Friday afternoon through Sunday evening, three-and-one-half hours one weeknight per week, alternating holidays, and two weeks in the summer. As to child support, the parties agreed in their amended child-support-guidelines worksheets that Mark's gross annual income amounted to $70, 000.[7] In calculating child support, the court adopted this figure and added an additional $10, 000 in estimated income for the hardware store business to reach a gross annual income for Mark of $80, 000. Aside from her income from spousal support, the court determined Misha's gross annual income to be $5000. Based upon these figures, and considering the reduction in Mark's spousal-support obligation after one year, the court determined Mark's child support obligation to be $621.24 as of August 2018 and $850.29 as of October 2019. In light of the "many moving parts" and the fact that Misha's income will undoubtedly increase, the court directed the parties, beginning in 2020, to exchange financial information.

         The court also revisited Mark's child-support obligation under the temporary order. The court stated:

It appears without doubt that [Mark] failed to disclose his unemployment income on his financial information provided to the court for the temporary matters hearing. Inclusion of that income with the income he was generating from his heating and cooling business would have produced a significantly higher child support award.

         In light of the court's determination, it recalculated Mark's child-support obligation as to the six months the temporary-matters order was in place, and entered judgment against Mark and in favor of Misha in the amount of $2051.76, the difference between what Mark was ordered to pay under the temporary-matters order and what the court determined he should have been paying.

         The court directed Misha's counsel to prepare a decree incorporating its findings and submit it to Mark's counsel for approval, after which it would be presented to the court. The court ultimately entered its decree, incorporating the foregoing. The decree was subsequently amended as to matters generally irrelevant to this appeal in response to the parties' post-trial motions to enlarge or amend pursuant to Iowa Rule of Civil Procedure 1.904(2). As noted, Mark appeals.

         II. ...


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