                  IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1663
                          Filed September 13, 2017


IN RE THE MARRIAGE OF KEVIN RICHARD HUINKER
AND DODY JANE HUINKER

Upon the Petition of
KEVIN RICHARD HUINKER,
      Petitioner-Appellee,

And Concerning
DODY JANE HUINKER,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Joel A. Dalrymple,

Judge.



      A wife appeals the physical care, child support, spousal support, property

division, and attorney fee provisions of the parties’ dissolution decree.

AFFIRMED AS MODIFIED.




      Kevin E. Schoeberl of Story, Schoeberl & Seebach, L.L.P., Cresco, for

appellant.

      Jeffrey L. Swartz of Swartz Law Firm, P.L.L.C., Waukon, for appellee.



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

       Dody Huinker appeals the physical care, child support, spousal support,

property division, and trial attorney fee provisions of the parties’ dissolution

decree. We affirm on the issues of physical care, child support, property division,

and trial attorney fees. We modify the allocation of unpaid medical expenses—

Kevin Huinker should pay 78.88% and Dody should pay 21.12% of all

unreimbursed medical expenses. We also modify the decree to provide Kevin

should pay spousal support of $350 per month. We award Dody $1000 appellate

attorney fees, payable by Kevin.

       I.      Background Facts & Proceedings

       Kevin and Dody were married in 2002. This was a second marriage for

both parties. They have one child, S.H., who was born in 2004. Kevin and Dody

separated in 2011 and now live a few blocks apart in Monona, Iowa.                   They

entered into an informal joint physical care arrangement where each week the

child lived with Kevin on Sunday, Monday, and Tuesday; with Dody on Thursday,

Friday, and Saturday; and on Wednesday care was alternated between the

parents. Kevin filed a petition for dissolution of marriage August 20, 2014.1

       The dissolution hearing was held on September 2, 2015. At that time

Kevin was forty-five years old. He was employed as a correctional officer for the

State of Iowa. His income in 2013 was $63,000. Kevin lived in a house owned

by his mother, and he paid her rent. He has a child from his first marriage, D.H.,


1
    A previous petition for dissolution of marriage was filed in 2007. Kevin was ordered to
pay temporary child support, which he continued to pay until the dissolution decree was
filed in this case, although the parties reconciled and the 2007 petition was dismissed. A
second petition for dissolution of marriage was filed in 2011, and was also dismissed.
                                           3


who lives with him. Kevin was in good health. During the marriage, the parties

obtained a mortgage and $12,900 from the proceeds of the loan was used to pay

Kevin’s prior debts. Kevin agreed to repay Dody for this debt.

       At the time of the dissolution hearing Dody was fifty years old. Prior to her

marriage to Kevin, Dody purchased a home in Elkader with funds she received in

dissolution proceedings from her first husband.2 She later sold the Elkader home

and purchased a home in Monona, where she was living at the time of trial.

Dody previously worked in a dental office for fourteen years but was currently

unemployed at the time of trial. Dody has a number of medical problems. She

was recently determined to be totally disabled, and she receives Social Security

disability benefits of $15,948 per year.

       A dissolution decree for the parties was filed on January 12, 2016. The

court granted the parties joint legal custody and joint physical care. The court

continued the current arrangement, where Kevin has the child on Sunday,

Monday, and Tuesday; Dody has the child on Thursday, Friday, and Saturday;

and they alternate Wednesdays and holidays. Kevin was ordered to pay child

support of $454.44 per month and to provide health insurance for the child. The

court determined the parties should equally share unreimbursed medical

expenses up to $250.       For any amounts over $250, the parents would pay

percentages as provided in the child support guidelines. The court did not award

any spousal support to Dody. The court divided the parties’ assets, including

Kevin’s account with the Iowa Public Employees Retirement System (IPERS).

2
    Dody has three children from her previous marriage, who are now adults. These
children lived with the parties when they were younger. After Dody’s first husband died,
her children received Social Security benefits while they were minors.
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As part of the property division, Kevin was ordered to pay Dody $12,000. The

court awarded Dody $750 in trial attorney fees.

         Dody filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).

The court increased the amount Kevin should pay Dody to $12,900, as he

agreed in his testimony. The court made some further adjustments to determine

Kevin should receive net assets worth $13,000 and Dody should receive net

assets worth $17,247. Dody now appeals the decision of the district court.3

         II.     Standard of Review

         Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). We examine the entire

record and determine anew the issues properly presented. In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the factual

findings of the district court but are not bound by them. In re Marriage of Geil,

509 N.W.2d 738, 741 (Iowa 1993).

         III.    Physical Care

         Dody claims the district court improperly placed the child in the parties’

joint physical care and asks to have the child placed in her physical care. She

states the parties had problems communicating about the child’s needs. She

also states there was a high degree of conflict between the parties due to Kevin’s

temper, instability, and controlling nature. She raises concerns about Kevin’s

use of alcohol and the child’s contact with D.H., who she believed had behavioral

and academic problems.            Dody also testified she believed Kevin did not do

enough to engage the child in extra-curricular activities.

3
    Kevin did not file an appellate brief.
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       “In child custody cases, the first and governing consideration of the courts

is the best interests of the child.” Iowa R. App. P. 6.904(3)(o). Joint physical

care may be awarded if either parent requests it and it is in the best interests of

the child.   Iowa Code § 598.41(5)(a) (2014).      In determining whether a joint

physical     care    arrangement    is   appropriate,   a   court   considers   (1)

“approximation”—what has been the historical care-giving arrangement for the

child between the two parties; (2) the ability of the spouses to communicate and

show mutual respect; (3) the degree of conflict between the parents; and (4) “the

degree to which the parents are in general agreement about their approach to

daily matters.” In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App.

2007) (quoting In re Marriage of Hansen, 733 N.W.2d 683, 697–99 (Iowa 2007)).

       Kevin and Dody successfully shared physical care of the child for four

years while they were separated. The historical care-giving arrangement in this

case was for each parent to care for the child half of the time. The evidence

showed the child was doing well in school and had flourished under the shared-

care arrangement. This leads to the conclusion the parties could communicate

as needed to jointly care for the child, the degree of conflict was not so great as

to prohibit joint physical care, and they generally agreed about their approach to

raising the child.    See id. We affirm the district court’s conclusion that joint

physical care was in the child’s best interests.

       IV.     Child Support

       Dody asks to have Kevin’s child support obligation increased if we grant

her request for physical care of the child. Because we have affirmed the district

court’s decision placing the child in the parties’ joint physical care, we do not
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modify the amount of Kevin’s child support obligation. Additionally, we find the

district court properly calculated the amount of child support using $63,000 as

Kevin’s annual income. We affirm the order requiring Kevin to pay child support

of $454.44 per month.

      V.     Unpaid Medical Expenses

      Dody asserts the district court improperly allocated the payment of unpaid

medical expenses. The district court ruled:

             Kevin shall maintain medical and dental health insurance
      through his employer, as long as the said insurance is available, for
      the benefit of S.N.H., and shall pay the premium for said insurance.
      The parties shall share equally the unreimbursed medical, and
      dental expenses incurred for S.N.H., upon written proof of the
      expense. If uncovered medical expenses for the child exceed $250
      per year, the petitioner and respondent shall pay the allotted
      percentage of the excess cost as provided by the Iowa Supreme
      Court child support guidelines.

      Iowa Court Rule 9.12(5) provides, “In cases of joint physical care, the

parents shall share all uncovered medical expenses in proportion to their

respective net incomes.” The worksheet used by the court to calculate Kevin’s

child support obligation shows Kevin had net annual income of $51,568 and

Dody had $13,806.       Using these figures, we determine Kevin should be

responsible for 78.88% and Dody should be responsible for 21.12% of the child’s

uncovered medical expenses. We modify the provision concerning uncovered

medical expenses in the parties’ dissolution decree.

      VI.    Spousal Support

      Dody claims she should have been awarded spousal support of $750 per

month. She points out the parties were married for thirteen years. She states

Kevin has a greater earning capacity and is in good health, while she has no
                                           7


earning capacity at this time due to her age and disability. Dody states she is not

able to support herself with the disability payments she receives.

       “Property division and alimony should be considered together in

evaluating their individual sufficiency.” In re Marriage of Trickey, 589 N.W.2d

753, 756 (Iowa Ct. App. 1998). Spousal support is not an absolute right. In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).               Whether spousal

support is proper depends on the facts and circumstances of each case. In re

Marriage of Brown, 487 N.W.2d 331, 334 (Iowa 1992).                When determining

whether spousal support is appropriate we consider the relevant factors found in

Iowa Code section 598.21A. Hansen, 733 N.W.2d at 704.

       Kevin has annual income of $63,000 per year, while Dody receives annual

Social Security disability benefits of $15,948. Due to her disability, Dody does

not have the ability to increase her income through employment. Looking at the

length of the marriage, the age of each party, Dody’s needs, and Kevin’s ability to

pay, we determine Dody is entitled to spousal support of $350 per month. The

award of spousal support is payable until the death of Kevin or Dody, or until

Dody is able to draw on her share of Kevin’s IPERS account, whichever occurs

first. We modify the spousal support provision of the parties’ dissolution decree

on this issue.4




4
  We acknowledge the spousal support award raises the issue of whether to include
spousal support in the child and medical support calculations. We determine in this case
equity does not require a recalculation. See In re Marriage of Russell, 511 N.W.2d 890,
892 (Iowa 1993).
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       VII.   Property Division

       A.     Dody claims the property division was inequitable. She asserts the

district court should have set off to her $18,862.22 as a premarital asset, in

recognition of the home she owned prior to the marriage.         The district court

considered this issue in its ruling on Dody’s rule 1.904(2) motion, and stated:

               Respondent seeks acknowledgement of approximately
       $18,862.22 from the settlement of her former home in Elkader,
       Iowa, which was deemed not marital property and, in fact, was sold
       prior to the parties’ marriage of 2002. Further, Dody purchased the
       marital home of Monona located at 201 East North Street prior to
       the parties’ marriage. The Court does distinguish the marital home
       from other premarital assets. The property brought into the
       marriage was only one factor to be considered by the Court
       regarding equitable distribution of property. In re Marriage of Garst,
       573 N.W.2d 604[, 606] (Iowa Ct. App. 1997). The Court further
       contemplated the sweat equity of Kevin in conjunction with the fact
       Kevin was the primary breadwinner and shouldered the majority of
       the bills during the course of the parties’ marriage. Consequently,
       the respondent’s request for modification relating to $18,862.22 is
       denied.

       We agree with the district court’s conclusions. Premarital assets are not

automatically set aside to one party but are a factor to be considered by the

court. See In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Kevin

contributed to the value of the home by repairs to the property and making

payments on the mortgage. We find the court properly determined the amount of

$18,862.22 should not be set aside to Dody.

       B.     Dody claims the district court did not properly divide Kevin’s IPERS

pension plan. The district court gave Dody a portion of Kevin’s IPERS pension

plan from the date of their marriage in 2002 until they separated in 2011. Dody

asserts she should receive a portion of Kevin’s pension during the years they

were married, from 2002 until the dissolution trial in 2015.
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       “Pensions in general are held to be marital assets, subject to division in

dissolution cases.” In re Marriage of Branstetter, 508 N.W.2d 638, 640 (Iowa

1993). Under the percentage method, the pension-holder’s spouse receives “a

percentage of the pension, payable when benefits become matured.”              In re

Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). “[T]his percentage is

based on the number of years the employee accrued benefits under the plan

during the parties’ marriage in relation to the total years of benefits accrued at

maturity.” Id. The value of the retirement benefit is set at the time of maturity,

not at the time of the dissolution of marriage. Id. at 257.

       The Benson formula is based on the equation:

50% of        x      Years spouse contributed to retirement plan while married
retirement           Years spouse contributed to retirement plan before
benefit              retirement

Sullins, 715 N.W.2d at 250. “The numerator in the fraction is the number of

years the pensioner accrued benefits under the plan during the marriage, and the

denominator is the total number of years of benefit accrual.”         Id.   We have

previously stated, however, “[e]quitable distributions require flexibility and

concrete rules of distribution may frustrate the court’s goal of obtaining equitable

results.” In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997).

We noted, “when parties separate several years before even filing a petition for

dissolution of marriage, an alternate valuation date is appropriate.” Id. (citing In

re Marriage of Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App. 1993)).

       Kevin and Dody were separated for four years before the dissolution trial.

In addition to the lengthy separation, the district court considered Kevin’s interest

in Dody’s house, his request not to claim any interest in the equity in the that
                                         10


home, and the distribution of the marital assets.        Considering the property

division as a whole, the court determined Dody should receive a portion of

Kevin’s IPERS pension benefits representing the time from the parties’ marriage

until they separated, which was 8.5 years. We find this division is equitable and

affirm the district court’s decision.

        VIII.   Attorney Fees

        A.      In the dissolution decree, the district court noted Dody had

previously been awarded $750 in trial attorney fees and the decree awarded her

an additional $750 for attorney fees. Dody claims the district court should have

awarded her the total amount of her trial attorney fees, $2,786.

        We review a district court’s decision granting trial attorney fees in a

dissolution action for an abuse of discretion.      Sullins, 715 N.W.2d at 255.

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

the parties to pay.” Id. Dody received a greater amount of property than Kevin,

plus she will now be receiving alimony. We conclude the district court did not

abuse its discretion in denying Dody’s request for a greater award of trial attorney

fees.

        B.      Dody also seeks attorney fees for this appeal. “Appellate attorney

fees are not a matter of right, but rather rest in this court’s discretion.” Id. In

determining whether to award appellate attorney fees, we consider, “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 Okland, 699 N.W.2d 260, 270 (Iowa

2005). We conclude Kevin should pay $1000 toward Dody’s appellate attorney

fees.
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      IX.    Conclusion

      We affirm on the issues of physical care, child support, property division,

and trial attorney fees. We modify the allocation of unpaid medical expenses and

order Kevin to pay 78.88% and Dody to pay 21.12% of all unreimbursed medical

expenses. We also modify the decree to order Kevin to pay spousal support of

$350 per month. We award Dody $1000 appellate attorney fees, payable by

Kevin. Costs of this appeal are assessed one-half to each party.

      AFFIRMED AS MODIFIED.
