                   IN THE COURT OF APPEALS OF IOWA

                                    No. 16-1880
                             Filed September 12, 2018


IN RE THE MARRIAGE OF MARK ALAN BERG
AND AMY LYNN BERG

Upon the Petition of
MARK ALAN BERG,
      Petitioner-Appellee,

And Concerning
AMY LYNN BERG,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.




      Amy Berg appeals the economic provisions of the decree dissolving her

marriage to Mark Berg. AFFIRMED AS MODIFIED.




      Karmen R. Anderson of Anderson & Taylor, PLLC, Des Moines, for

appellant.

      Scott L. Bandstra of Bandstra Law Firm, Des Moines, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

       Amy and Mark married in 2005, had two children, and divorced in 2015.

Amy appeals the economic provisions of the dissolution decree. She contends (1)

the district court should have assigned her one of the two tax exemptions for the

children; (2) the district court’s property division was inequitable, and (3) she

should have been awarded more trial attorney fees.

I.     Tax Exemptions

       The district court ordered Mark “to claim both children as dependents

exemption for federal and state income tax.”          Amy argues the dependent

exemptions should have been “split evenly.” She notes that Mark earned “over

three times the amount of money” that she did; she received “the earned income

credit due to her low income”; she used tax refunds “to pay off debts”; and “[t]aking

away any tax exemptions from her [would] significantly reduce[] her income and

increase[] her tax liability.”

       “The ‘general rule’ is that the parent given primary physical care of the child

is entitled to claim the child as a tax exemption.” In re Marriage of Okland, 699

N.W.2d 260, 269 (Iowa 2005) (citation omitted); see Iowa Ct. R. 9.6(5) (“The

custodial parent shall be assigned one additional dependent exemption for each

mutual child of the parents . . . .”). “However, courts have the authority to award

tax exemptions to the noncustodial parent ‘to achieve an equitable resolution of

the economic issues presented.’”        Okland, 699 N.W.2d at 269 (quoting In

re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996)).

         Amy was granted physical care of the children. But, as she acknowledges,

her income was significantly lower than Mark’s and she was eligible for the earned
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income credit, reducing the value of the dependent exemption to her. See, e.g.,

In re Marriage of Coons, No. 06-0699, 2007 WL 750571, at *2 (Iowa Ct. App. Mar.

14, 2007) (affirming award of dependent exemption to the noncustodial parent

where he earned close to three times more than the custodial parent and custodial

parent would have to pay no income tax); Bates v. Loosemore, No. 04-1822, 2005

WL 1969729, at *1 (Iowa Ct. App. Aug. 17, 2005) (affirming award of dependent

exemption to the noncustodial parent where the mother was entitled to earned

income credit up through earnings of $25,000, regardless of whether she claimed

the child as a dependent.). Specifically, Amy testified her actual earnings in the

year preceding trial were $7111 and she anticipated her earnings in 2015 “would

be about $15,000.” Although the district court found her annual income was

$18,000, this figure was still significantly lower than the $56,800 annual income

figure ascribed to Mark. In addition to her eligibility for the earned income credit,

Amy claimed dependent exemptions for two children from another relationship.

       Based on this record, we conclude the district court acted equitably in

assigning both dependent exemptions to Mark.

II.    Property Distribution

       Amy argues the property distribution portion of the decree was inequitable.

In her view, (A) she should have received half rather than one-third of one of Mark’s

retirement accounts; (B) a pension should have been equitably divided; and

(C) she should have received certain personal property.

       A.     Retirement Accounts

       Mark had three retirement accounts, which he identified as follows: (1) an

Edward Jones IRA valued at $33,950.33, (2) a Sheet Metal Workers 401(k)
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account listed by Mark as having a market value of $86,516.62 and a net value of

$75,075.71, and (3) a Ubiquity retirement (formerly “Berg Audio and Video 401(k)”

account) valued at $76,329.44. Amy did not have any retirement accounts.

      The district court concluded (1) the IRA accrued before the couple married

and Amy was not entitled to any of it; (2) Amy was entitled to one-fourth of the

value of the Sheet Metal Workers 401(k) account; and (3) Amy should receive one-

third of the Berg 401(k) account. Rather than dividing each account, the court

ordered Mark to “transfer $55,000 in value or related portion from the [Berg]

account to a 401(k) account in Amy’s name.”

      Amy does not challenge the district court’s division of the first two retirement

assets. She focuses on the third account and asserts she is entitled to fifty rather

than thirty-three percent of the account value because the account was “entirely

marital” and her “contributions [to the marriage] are worth 50%.” She does not

specify how the account should have been divided.

      The record contains a “Stipulation Re: Qualified Domestic Relations Order”

regarding the “MG2, LLC dba Berg Audio & Video 401(k) plan.” The stipulation

states Amy’s “interest in the Plan shall be $55,000 of [Mark’s] total vested account

balance under the plan.”     Also on file is a qualified domestic relations order

recognizing Amy’s right to an interest in $55,000 of vested benefits in the plan. As

noted, the district court awarded her $55,000 from this account as the sum total of

her interest in Mark’s retirement accounts. On our de novo review, we conclude

Amy was entitled to this amount, exclusive of her one-fourth interest in the Sheet

Metal Workers 401(k) account. We modify the decree to award Amy her $55,000
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interest in the Berg 401(k) plan, to be distributed in accordance with the qualified

domestic relations order.

       Having concluded Amy is entitled to her $55,000 share of the Berg 401(k)

account exclusive of her one-fourth interest in the Sheet Metal Workers 401(k)

account, we must now determine how to compensate Amy for that one-fourth

interest. In his trial brief, Mark advocated for a QDRO division of the account

pursuant to the percentage method set forth in Benson. We adopt his approach.

We incorporate his formula here, decreasing the applied percentage from the fifty

percent figure he used to the twenty-five percent figure the district court adopted.

The property distribution portion of the decree is modified to provide for a QDRO

to divide Mark’s Sheet Metal Workers 401(k) under the following formula: Amy’s

share = 4/9 (# of quarters Mark contributed to pension plan while married) / (# of

quarters Mark contributed to pension plan before retirement) x 25% of the plan

value at the time of trial, which Mark estimated was $86,516.62.

       B.     Pension

       Mark also had a Sheet Metal Workers pension, which partially accrued

during the marriage.1 The district court stated, “The value of this pension is

unknown, but it is anticipated he will receive between $200 to $300 per month from

this pension.” The court noted that Mark would have to continue paying union dues

to receive the pension and concluded the plan should be awarded to him alone “if

he wishes to continue his union dues.” Amy contends the pension should have

been divided. On our de novo review, we agree.


1
 The Sheet Metal Workers pension is to be distinguished from the Sheet Metal Workers
401(k) retirement account, which Mark also referred to as the “Principal 401(k).”
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       “Pensions are divisible marital property.”   In re Marriage of Sullins, 715

N.W.2d 242, 247-48 (Iowa 2006). The pension Mark had was a defined benefit

plan, entitling Mark to $481 per month at age sixty-five. See In re Marriage of

Benson, 545 N.W.2d 252, 254 (Iowa 1996) (“[I]n a defined benefit plan the future

benefit is specified in advance by a formula.”). Contributions accrued for five years

preceding the marriage and continued to accrue for close to four additional years.

At trial, Mark testified Amy was entitled to a portion of his pension, specifically,

“[t]he half that was contributed during the marriage.” Based on our precedent and

Mark’s concession, we conclude the defined benefit plan should have been

divided.

       “There are two accepted methods of dividing pension benefits: the present-

value method and the percentage method.” Sullins, 715 N.W.2d at 248. “Under

the percentage method, the non-pensioner spouse is awarded a percentage

(frequently fifty percent) of a fraction of the pensioner’s benefits (based on the

duration of the marriage), by a qualified domestic relations order (QDRO), which

is paid if and when the benefits mature.” Id. at 250. Applying this method, which

Sullins approved for division of defined benefit plans, we modify the decree to

provide for a QDRO to divide Mark’s monthly pension benefits when received

under the following formula: Amy’s share = 50% x (# of quarters Mark contributed

to pension plan while married) / (# of quarters Mark contributed to pension plan

before retirement) x monthly benefits. See id.

       C.     Personal Property

       The dissolution decree states:
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              [The parties] have equitably divided their personal property
       and they each should retain the property in their possession.
              ....
              [T]he parties shall retain the personal property in their
       possession with the exception that any of Amy’s personal property
       which remains at the marital home shall be returned to Amy within
       90 days, including her clothing, bows, guns and ammunition. Mark
       shall retain his personal bows, guns and ammunition. If a dispute
       arises between the parties concerning the division of the bows, guns
       and/or ammunition the items in dispute shall be sold and the amount
       from the sale shall be divided equally between the parties.

       Amy contends “she should be allowed to have her personal and premarital

property back from the home.” At trial, she provided a list of property she wished

to have in addition to her “clothes and things.” She stated, “I didn’t take them all

out because I was hoping at some point we would be back together.” Mark testified

he had “no problem” giving Amy’s personal property to her, including family

heirlooms, guns, bows, clothes, and personal items.

       We conclude the district court acted equitably in dividing the personal

property. While the decree did not list every item Amy now states she desires,

Mark’s willingness to turn over the items and the court’s inclusion of an escape

clause for certain disputed items adequately resolves the issue. We affirm the

district court’s division of personal property.

       D. Disposition-Property Division

       Although Amy does not challenge the court’s division of the couple’s home,

the division bears mention in light of Mark’s assertion that it skewed the property

division in favor of Amy. The district court found Mark “contributed $85,000 in

equity to the home purchase.”        The court further found “[t]here is presently

$120,000 in equity in the home at the present time, with $35,000 left to distribute.”

The court determined Mark would retain the home and Amy was “entitled [to]
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$17,250 from the equity in the marital home.” Amy acknowledged receipt and

satisfaction of this property settlement.

        Mark notes his contribution of premarital funds was actually higher than the

court found and, accordingly, the equity to be divided was about $2000 lower.

Given this claimed discrepancy between the record and the court’s findings, he

argues we should affirm the district court’s property division in its entirety.

       Documentary evidence supports Mark’s assertion of a higher premarital

contribution to the home than the court found. But Mark’s trial testimony was more

equivocal. He testified his premarital contribution of funds toward the purchase of

the couple’s home was between $85,000 and $90,000. The court’s finding that he

contributed $85,000 fell within the range of the evidence. See In re Marriage of

McDermott, 827 N.W.2d 671, 679 (Iowa 2013). We conclude the court’s treatment

of the home equity does not mandate affirmance of the remaining property

distribution scheme.

       In sum, the property distribution portion of the decree is modified to

(1) award Amy her $55,000 interest in the Berg 401(k) plan, to be distributed in

accordance with the QDRO on file; (2) provide for a QDRO to divide Mark’s Sheet

Metal Workers 401(k) under the formula set forth above; and (3) provide for a

QDRO to divide Mark’s monthly pension benefits when received under the formula

set forth above.

III.   Trial and Appellate Attorney Fees

       Amy contends the court abused its discretion in awarding her $2000 in trial

attorney fees, rather than the $3000 she requested. “[A]n award of attorney fees

rests in the sound discretion of the trial court and will not be disturbed on appeal
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absent an abuse of discretion.” In re Marriage of Francis, 442 N.W.2d 59, 67 (Iowa

1989).

         We discern no abuse in the court’s refusal to award an additional $1000 in

trial attorney fees. Both sides litigated the dissolution matter vigorously. Mark

complied with the order and promptly paid the $2000. We affirm the trial attorney-

fee award.

         Amy seeks an award of appellate attorney fees.       Again, an award is

discretionary. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).

We order Mark to pay $2000 toward Amy’s appellate attorney-fee obligation.

         AFFIRMED AS MODIFIED.
