                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1116
                               Filed May 25, 2016


IN RE THE MARRIAGE OF TIFFANY LANE SCHULTZEN
AND BRAD JAMES SCHULTZEN

Upon the Petition of
TIFFANY LANE SCHULTZEN,
      Petitioner-Appellee/Cross-Appellant,

And Concerning
BRAD JAMES SCHULTZEN,
     Respondent-Appellant/Cross-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey A.

Neary, Judge.



      A husband appeals and a wife cross-appeals the provisions of their

dissolution decree. AFFIRMED AS MODIFIED AND REMANDED.



      John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.

      Elizabeth A. Row of Elizabeth A. Row, P.C., Sioux City, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

        Brad Schultzen appeals and Tiffany Schultzen cross-appeals the

provisions of their dissolution decree.       Tiffany also cross-appeals the district

court’s denial of her application for contempt. We modify the dissolution decree

to adjust the district court’s valuation of two items of property awarded to Brad—a

2000 Ford F-150 pickup truck and a white trailer—and decrease the equalization

payment to Tiffany by $3295 as a result. We affirm the dissolution decree in all

other respects.   We find the district court’s denial of Tiffany’s application for

contempt was not an abuse of discretion.

I. Background Facts and Proceedings

        Brad and Tiffany were married in July 2005 and separated in December

2013. They have one child together, B.S.J.S. (B.S.), born in 2006. Brad and

Tiffany dated in high school and then began dating again in 2004. In between,

Brad was convicted of a sex offense and served time in prison from 1992 to

2003.     As a convicted sex offender, Brad has an ongoing registration

requirement.

        Brad is a journeyman plumber, but he has had difficulty maintaining

employment since being released from prison. He has been terminated from

multiple positions, told things were “not going to work” after being hired but prior

to beginning a position, and was not hired by employers unwilling to deal with the

complications that come with his sex offender status and registry requirements.

In approximately 2013, Brad started his own business.            He has been self-

employed since, although he maintains his self-employment is not by choice but
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rather because he had run out of options. Tiffany has full-time employment,

where she earns fourteen dollars per hour.

      Tiffany filed a petition for dissolution of marriage on January 15, 2014.

The district court issued a temporary order on March 24, 2014. The temporary

order placed physical care of B.S. with Tiffany and granted Brad scheduled

parenting time every week from Wednesday at 3:30 p.m. to Thursday at 8:00

a.m. and every other weekend from Friday at 3:30 p.m. to Sunday at 3:30 p.m.

The temporary order also instructed Brad to pay Tiffany back, within forty-five

days of the order, half of the $9000 he had withdrawn from the parties’ joint

account and to pay Tiffany for fifty percent of all uninsured medical and dental

expenses for B.S.     On November 26, 2014, Tiffany filed an application for

contempt alleging Brad had not paid her the $4500 or his share of B.S.’s

uncovered medical expenses as ordered.

      A two-day bench trial was held on January 29, 2015 and February 3,

2015, at which the court considered both the parties’ dissolution and Tiffany’s

application for contempt. The parties agreed Tiffany should be awarded physical

care of B.S., but Tiffany sought sole legal custody while Brad argued for joint

custody.   The parties also disagreed about the appropriate figure for Brad’s

income for purposes of calculating child support payments; Brad argued his

actual earnings should be used, while Tiffany argued he was self-employed by

choice and so his higher past income should be imputed to him.          Brad and

Tiffany disputed the valuations for a number of assets to be divided between the

parties. Finally, Tiffany argued Brad should be held in contempt for having failed
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to pay her the $4500 as instructed by the temporary order. Each party requested

the court order the other to pay attorney fees.

       The district court entered its decree of dissolution of marriage and ruling

on contempt application on April 15, 2015. Afterwards, both parties filed motions

to enlarge, amend, and modify the decree, and the district court entered a ruling

on those motions on May 27, 2015. Brad then filed a motion to clarify and

enlarge, and Tiffany filed a motion to enlarge in response, which also resisted

Brad’s motion to clarify. On June 19, 2015, the district court issued a ruling

concluding “the final decree as amended by the [May 27, 2015] ruling on post-

decree motions . . . is equitable under the facts of this case.” The district court

made no further adjustments and gave no further clarification.

       Brad now appeals, and Tiffany cross-appeals.

II. Standard of Review

       We review dissolution of marriage cases de novo.           In re Marriage of

Schenkelberg, 824 N.W.2d 481, 483–84 (Iowa 2012). We give weight to the

factual findings of the district court, especially when considering the credibility of

witnesses, but are not bound by them. In re Marriage of McDermott, 827 N.W.2d

671, 676 (Iowa 2013). “Prior cases are of little precedential value, except to

provide a framework for analysis, and we must ultimately tailor our decision to

the unique facts and circumstances before us.” In re Marriage of Kleist, 538

N.W.2d 273, 276 (Iowa 1995).
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III. Discussion

        A. Valuation of Property

        In Iowa, we “divide the property of the parties at the time of divorce,

except any property excluded from the divisible estate as separate property, in

an equitable manner in light of the particular circumstances of the parties.” In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005); see also Iowa Code

§ 598.21(5) (2013). “An equitable distribution does not mean an equal division.”

Schriner, 695 N.W.2d at 499. On appeal, we will not disturb the district court’s

valuation of assets included in the marital estate when they are within the range of

permissible evidence. See In re Marriage of McDermott, 827 N.W.2d 671, 679 (Iowa

2013). “Although our review is de novo, we ordinarily defer to the trial court when

valuations are accompanied by supporting credibility findings or corroborating

evidence.” In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007).

        In his appeal, Brad argues the district court incorrectly over-valued two

items of property awarded to him—a 2000 Ford F-150 pickup truck and a white

trailer—and that the over-valuation resulted in a $3295 increase in his

equalization payment due to Tiffany. He asserts the district court should have

used the evidence of value he provided for the items—$2385 and $1300,

respectively—rather than the valuations provided by Tiffany—$7775 and $2500.

Brad’s evidence for his valuations of the truck and trailer was an appraisal by

AAA Auctioneers, corroborated by his own testimony about the items; Tiffany’s

evidence for her valuations was a National Automobile Dealers Association

(NADA) Guide “Clean Retail” value for the truck and her own internet research

for the trailer.
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       On our de novo review, we agree with Brad; the district court incorrectly

valued both the pickup truck and trailer by using Tiffany’s valuations. Although

we ordinarily defer to the district court’s valuations when they are supported by

credibility findings or corroborating evidence, we do not find the testimony and

evidence provided by Tiffany adequately support the valuations used by the

district court. We are persuaded the AAA Auctioneers appraisal offers a more

accurate and individualized representation of the true value of those items.

       With respect to the pickup truck, the appraisal valuation was corroborated

by Brad’s testimony the truck had high mileage, had been in two wrecks, and

needed repairs.    In contrast, the valuation accepted by the district court is

supported only by a NADA price report that was printed off of a website. The

NADA document includes varying prices for vehicles of the same year, make,

model, and trim options in four different levels of condition: “Clean Retail,” “Clean

Trade-In,” “Average Trade-In,” and “Rough Trade-In.” Tiffany did not provide

evidence sufficient to support the district court’s acceptance of the highest

valuation—“Clean Retail”—for a pickup truck that was described by Brad as

being in far less than perfect shape.

       Furthermore, the district court used valuations from the AAA Auctioneers

appraisal for other items of property, including furniture, two motocross race

bikes, and, most notably, a 2009 Pontiac Torrent awarded to Tiffany.             The

appraisal valuation for the 2009 vehicle was $7525, meaning the district court

found it to be worth two hundred and fifty dollars less than the 2000 pickup truck.

We find the record does not contain an adequate basis to support the use of
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Tiffany’s NADA valuation for the pickup truck; it is equitable to assign the

appraised values to both vehicles.

       The same goes for the valuation of the white trailer, which was also

appraised by AAA Auctioneers. Tiffany did not provide evidence sufficient to

support the district court’s decision to accept her own internet-search-based

valuation instead of the valuation made by a professional valuation company.

We find the appraised value should be used for the trailer as well.

       Tiffany suggests on cross-appeal that if we find the pickup truck and white

trailer require re-valuation, then we should also review “the value of each

disputed property item.”     In making that suggestion, Tiffany mentions the

valuation of Brad’s tools and a sectional couch. However, she does not present

any substantive argument in favor of a specific valuation amount for any

particular item; she simply asks that we independently review the valuations of all

disputed items. We decline Tiffany’s invitation to engage in a wholesale review

of every disputed-value determination made by the district court. We find the

valuation of the pickup truck and trailer to be a special case, specifically

addressed and argued by Brad. We find all remaining property valuations made

by the district court are within the range of permissible evidence.

       Having determined the 2000 Ford F-150 truck and white trailer awarded to

Brad should have been valued at $2385 and $1300, respectively, we modify the

judgment of the district court by reducing the equalization payment to be paid by

Brad to Tiffany by $3295, from $12,630.50 to $9335.50.
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       B. Tiffany’s Contempt Application

       Tiffany next argues on cross-appeal the district court erred when it

declined to hold Brad in contempt. She argues Brad’s failure to comply with the

court order to pay her $4500 plus fifty percent of their son’s uncovered medical

expenses constituted willful disobedience and was sufficient to support a

contempt finding. Brad argues Tiffany’s cross-appeal on this issue is untimely

because the parties’ post-trial motions seeking to enlarge, amend, and modify

the dissolution degree did not toll the thirty-day period for appealing the ruling on

Tiffany’s application for contempt. See Iowa R. App. P. 6.101(1)(b).

       Iowa Code section 598.23(1) states, “If a person against whom a

temporary order or final decree has been entered willfully disobeys the order or

decree, the person may be cited and punished by the court for contempt . . . .”

(emphasis added).      “A party alleging contempt has the burden to prove the

contemner had a duty to obey a court order and willfully failed to perform that

duty.” Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007). If the party

alleging contempt is able to do so, then “the burden shifts to the alleged

contemner to produce evidence suggesting the violation was not willful.” Id. The

burden of proof to establish willfulness beyond a reasonable doubt remains with

the party alleging contempt. Id. “A failure to follow a court order is not willful if a

contemner shows the order was indefinite or that the contemner was unable to

comply with the order.” Id.

       Assuming, without deciding, Tiffany’s cross-appeal on the contempt issue

was timely, we find no abuse of discretion by the district court. “[A] trial court is

not required to hold a party in contempt even though the elements of contempt
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may exist.” In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995). Instead,

“the trial court may consider all the circumstances, not just whether a willful

violation of a court order has been shown, in deciding whether to impose

punishment for contempt in a particular case.” Id. The trial court has broad

discretion in deciding whether to hold a party in contempt, and we review for a

gross abuse of that discretion. Id.

      Here, we find the district court’s contempt ruling did not constitute an

abuse of discretion. The district court considered the circumstances surrounding

Brad’s failure to pay Tiffany as ordered and concluded Brad’s stated reason for

not paying her—he chose to have the amount he owed Tiffany be addressed

along with the court’s overall division of assets and debts—did not reveal evil

intent on his part. We do not disturb the district court’s ruling because its broad

discretion regarding Tiffany’s contempt application allows for such a conclusion.

      C. Scheduled Parenting Time

      Tiffany next argues on cross-appeal the district court’s award to Brad of

midweek and extended summer parenting time is not in the best interests of B.S.

She claims Brad has not demonstrated any interest in their son and points to

evidence Brad did not request additional parenting time or keep in regular

telephone contact with B.S. while the temporary order was in place and failed to

participate in recent events including parent-teacher conference and other school

activities. She also points to evidence of past instances of subpar parenting.

      Iowa Code section 598.41(1)(a) instructs:

      The court, insofar as is reasonable and in the best interest of the
      child, shall order the custody award, including liberal visitation
      rights where appropriate, which will assure the child the opportunity
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       for the maximum continuing physical and emotional contact with
       both parents after the parents have separated or dissolved the
       marriage, and which will encourage parents to share the rights and
       responsibilities of raising the child unless direct physical harm or
       significant emotional harm to the child, other children, or a parent is
       likely to result from such contact with one parent.

       Here, the district court determined joint custody to be appropriate, placed

physical custody of B.S. with Tiffany, and granted parenting time to Brad in

excess of that which had been granted in the original, temporary order. Under

the terms of the dissolution decree, Brad has scheduled parenting time at the

following times (excluding holidays): every week from Wednesday at 3:30 p.m. to

Thursday when school starts or 9:00 a.m. when there is no school on Thursday;

every other weekend from Friday at 3:30 p.m., or whatever time school and

school-related activities conclude, to Monday when school starts or 9:00 a.m.

when there is no school on Monday; and every other week in its entirety during

the summer months of June, July, and August.

       We find no abuse of discretion in the scheduled parenting time the district

court granted Brad. The record shows Brad cares for B.S., and to the extent

Tiffany and her witnesses raised concerns about Brad’s parenting, we defer to

the district court’s credibility determination. The district court’s grant of liberal

parenting time to Brad is consistent with the statutory preference for maximum

continuing physical and emotional contact with both parents and is not contrary

to B.S.’s best interests.

       D. Determination of Brad’s Earnings for Child Support

       Tiffany next argues on cross-appeal the district court incorrectly

determined that Brad’s child support and share of uncovered medical expenses
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should be based upon his actual earnings rather than his earning capacity. She

takes issue with the fact Brad has not sought out employment with any

established companies during the past year and the fact he stated on the witness

stand he is “making it” and “didn’t care about being rich.” She argues because

he is a licensed journeyman plumber and has held jobs in the past for which he

earned upwards of $4000 per month, Brad’s earning capacity should be based

upon the amount he has demonstrated he is capable of earning and he should

not be allowed to make the decision to be self-employed in order to lower his

earning capacity.

      In applying the child support guidelines, the court must determine the

parents’ monthly income from the most reliable evidence presented.          In re

Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). “Both parents have a

legal obligation to support their children, not necessarily equally but in

accordance with his or her ability to pay.” Moore v. Kriegel, 551 N.W.2d 887, 889

(Iowa Ct. App. 1996). There is “a rebuttable presumption that the amount of child

support which would result from the application of the guidelines prescribed by

the supreme court is the correct amount of child support to be awarded.” Iowa

Ct. R. 9.4. However, the obligation “may be adjusted upward or downward . . . if

the court finds such adjustment necessary to provide for the needs of the

children or to do justice between the parties under the special circumstances of

the case.” Id.

      A district court “shall not vary from the amount of child support that would

result from application of the guidelines without a written finding that the

guidelines would be unjust or inappropriate” under specified criteria. Iowa Ct. R.
                                       12


9.11. “When a parent voluntarily reduces his or her income or decides not to

work, it may be appropriate for the court to consider earning capacity rather than

actual earnings when applying the child support guidelines.” In re Marriage of

Nelson, 570 N.W.2d 103, 106 (Iowa 1997); see also Iowa Ct. R. 9.11(4) (“The

court may impute income in appropriate cases . . . .”) Before a court may use

earning capacity rather than actual earnings, it must “make a determination that,

if actual earnings were used, substantial injustice would occur or adjustments

would be necessary to provide for the needs of the child and to do justice

between the parties.” Nelson, 570 N.W.2d at 106; see also Iowa Ct. R. 9.11(4).

When assessing whether to use a parent’s earning capacity, “[w]e examine the

employment history, present earnings, and reasons for failing to work a regular

work week.” Nelson, 570 N.W.2d at 106; see also Iowa Ct. R. 9.11(4).

      Here, the district court ordered Brad to pay Tiffany monthly child support

payments of $363.60 based upon a gross annual taxable income of $24,675.

Tiffany had requested the court instead impute his earning capacity when

calculating the payments based upon evidence Brad had earned approximately

$50,000 per year from 2009 to 2011.

      On our de novo review, we agree with the district court’s decision to use

Brad’s actual earnings in determining the child support owed to Tiffany. The

district court did not make a finding application of the guidelines would be

inappropriate, or that use of actual earnings would cause substantial injustice or

require adjustments to provide for B.S.      We agree with the district court’s

conclusion that the reduction in Brad’s earnings was not a voluntary choice, but

was rather one of several unwelcomed effects of his status as a sex offender.
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       E. Attorney Fees and Costs

       Finally, Tiffany argues on cross-appeal the district court should have

awarded her attorney fees below, and also we should award her attorney fees

and costs on appeal.      “Trial courts have considerable discretion in awarding

attorney fees.”   In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).

“Whether attorney fees should be awarded depends on the respective abilities of

the parties to pay,” and any fees awarded “must be fair and reasonable.” Id.

“Appellate attorney fees are not a matter of right, but rather rest in this court's

discretion.”   In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

Whether appellate attorney fees should be awarded depends upon factors which

include “the needs of the party seeking the award, the ability of the other party to

pay, and the relative merits of the appeal.” In re Marriage of Geil, 509 N.W.2d

738, 743 (Iowa 1993).

       Considering the respective abilities of the parties to pay, we conclude the

district court did not abuse its discretion in ordering each party to pay their own

trial attorney fees.   We decline to award appellate attorney fees for similar

reasons. However, because Brad’s appeal was meritorious and Tiffany’s cross-

appeal was not, we assess costs to Tiffany.

IV. Conclusion

       We find the district court improperly valued the 2000 Ford F-150 truck and

white trailer awarded to Brad. We do not otherwise disturb the district court’s

valuations of property distributed to the parties. We find the district court’s denial

of Tiffany’s application for contempt was not an abuse of discretion. We further

find the district court’s grant of parenting time to Brad was not contrary to B.S.’s
                                       14


best interests, and the district court correctly determined Brad’s child support

payments using his actual earnings as opposed to imputing income to him.

      We remand the case so the district court can modify its order to reduce

the equalization payment due to Tiffany, consistent with this opinion. Costs of

this appeal are assessed to Tiffany.

      AFFIRMED AS MODIFIED AND REMANDED.
