                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0897
                              Filed April 22, 2015

IN RE THE MARRIAGE OF DAVID MEYERS
AND ANNA MEYERS

Upon the Petition of
DAVID MEYERS,
      Petitioner-Appellee,

And Concerning
ANNA MEYERS,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Pottawattamie County, Kathleen

Kilnoski, Judge.



      Anna Meyers appeals the district court’s decree of dissolution and denial

of her motion for new trial. AFFIRMED AS MODIFIED AND REMANDED



      Suellen Overton of Overton Law Office, Council Bluffs, for appellant.

      Stephen C. Ebke of Ebke Law Office, Council Bluffs, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, J.

       Anna Meyers appeals the property division, child support, and tax

exemption provisions of the decree dissolving her marriage to David Meyers.

Anna also asks for appellate attorney fees. We affirm as modified and remand

for calculation of the child support obligation.

I.     BACKGROUND FACTS AND PROCEEDINGS

       Anna and David were married in 1996. They have four children, three of

whom are minors and currently residing with the parties; their placement is not at

issue. In the year before their marriage, the couple lived together in a home

owned by Anna located in Council Bluffs (Bel-Air Drive home). Shortly after their

marriage the couple purchased another Council Bluffs home, which served as

their marital residence until their separation in 2013.

       At the time of trial, David was fifty-one years old and in relatively good

health. David has an associate’s degree, and for the past fourteen years David

has worked as a support technician in the Children’s Hospital’s cardiac

catheterization lab. David’s 2013 W-2 shows an income of $70,297.79.

       Anna is forty-seven years old and has suffered seizures, migraines, and

has high cholesterol.     Anna has a doctorate in nursing practice, which she

received in 2010. She works as a professor of nursing practice for three online

colleges. She estimates her annual income to be approximately $24,000. Prior

to becoming a professor, she worked as a nurse practitioner in a clinical setting.

For 2012, she had an income of $67,270, and earned a like amount since 2009.

Anna testified she was terminated from her employment because she suffered a
                                        3



seizure at work.    She hired an attorney and was offered her job back on a

probationary basis, but declined electing to move to Carson, Iowa, to care for her

father who suffers from Alzheimer’s.

       David filed the petition for dissolution in June 2013, and trial was held in

January 2014. Prior to trial, the couple reached an agreement concerning their

children. However, they could not agree on issues concerning their respective

incomes and the distribution of property. Based on David’s W-2, the court found

his annual income to be $70,297.79. The court found “Anna’s voluntary change

in careers ha[d] resulted in a significant decline in her income. Her testimony

revealed that her health was not the reason for her decision to reduce her

income.” For the purposes of child support (based on her income from past

years), the court set Anna’s income at $67,270. The court set child support and

divided the other property, with each party receiving $78,981 in net assets. The

court declined Anna’s request for a setoff for premarital funds used in the marital

home (proceeds of the sale of the Bel-Air home and a personal injury

settlement).

       In March 2014, Anna filed a motion for new trial. She claimed the property

settlement in the decree was not fair and reasonable, the child support provisions

were contrary to the law and the evidence submitted, and the court’s failure to

award her attorney fees was contrary to the evidence. After a hearing the court

denied Anna’s motion. Anna now appeals from the dissolution decree and the

denial of her motion for new trial.
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II.    STANDARD OF REVIEW

       In this equity action involving the dissolution of a marriage, we engage in

de novo review. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

Our review involves examining the entire record and adjudicating anew the

issues presented. Id. We give weight to the district court’s factual findings,

though they are not binding on us. Id. We defer to the district court’s opinion

regarding the believability of the parties because of the trial judge’s superior

ability to gauge their demeanor. In re Marriage of Pundt, 547 N.W.2d 243, 245

(Iowa Ct. App. 1996).

III.   ANALYSIS

       A.    Property Division

       Anna claims the district court’s distribution of property was not equitable

as the court ignored her pre-marital personal injury assets, the court allocated to

her $47,321 of her liquidated retirement account and did not allocate similar

funds as a result of David’s withdrawal from his retirement account, and the court

awarded $2500 in frozen food to her.

       Iowa courts strive to divide marital property equitably between divorcing

spouses based on the factors set out in Iowa Code section 598.21(5) (2013). But

an equitable division is not necessarily an equal division.     In re Marriage of

Hansen, 733 N.W.2d 683, 702 (Iowa 2007). The factors relevant to this case

include the length of the marriage; the property brought into the marriage; the

contribution of each party to the marriage, giving appropriate economic value to
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each party’s contribution and homemaking; the earning capacity of each party;

and other economic circumstances of each party. See Iowa Code § 598.21(5).

              1.       Pre-Marital Personal Injury Proceeds

       The property a party brings into the marriage is a factor to consider in

making an equitable division. Iowa Code § 598.21(5)(b). In some instances, this

factor may justify a full credit, but it is not required. In re Marriage of Miller, 552

N.W.2d 460, 465 (Iowa Ct. App. 1996). A premarital asset is not otherwise set

aside like gifted or inherited property.         Id.   Additionally, in considering

accumulations to premarital assets, we do not limit our focus to the parties’ direct

contributions to the increase. Id. Rather, we broadly consider the contributions

of each party to the overall marriage, as well as all other factors. Iowa Code

§ 598.21(5). Financial matters make up only a portion of a marriage, and must

not be emphasized over other contributions in determining an equitable

contribution. Miller, 552 N.W.2d at 465.

       Prior to the marriage Anna was involved in a car accident and suffered

injuries. She sued the driver and received a $53,750 settlement. Anna used

these funds to purchase the Bel-Air Drive home. Anna testified the funds from

the sale of this house were used in the purchase of the marital home. Anna

claims the district court’s ruling fails to give her credit for these funds. The court

noted in the decree:

              Anna claims she should have a portion of the current marital
       home that was purchased in 1996 awarded to her as a premarital
       asset. She produced no documentation to show the amounts, if
       any, that were actually utilized for the purchase of the marital home
       from the proceeds of the home she owned before they got married.
       She did produce a 1099 form from that sale in David’s name and
                                            6



       Social Security number. The marital home was placed in joint
       tenancy in both David and Anna’s names when it was purchased.
              ....
              Anna’s claim for a setoff for premarital investments in the
       marital home is hereby denied. Specific reasons for said denial are
       the lack of any credible information as to the amounts which might
       be involved, if any, the significant passage of time, and the placing
       of the marital home in joint tenancy when it was purchased.

In the court’s denial of Anna’s motion for new trial, it clarified:

              The court FINDS that Anna sold her premarital home a few
       months after the parties married in 1995. David had lived with her
       in the premarital home for about a year before the marriage, and he
       contributed toward the household expenses while living with Anna.
       Anna testified that she was not sure how the proceeds from the
       sale of that home were distributed, but that she “assumed” that
       most of those proceeds were used to set up the parties’ marital
       home. She could not recall the amount of the down payment on
       the marital home, and she had no other evidence about the
       purchase of the marital home. The 1099 form from the sale of the
       premarital home showed that the home was in David’s name. The
       marital home was owned jointly by the parties for nearly seventeen
       years. Given the length of the parties’ marriage and the parties’
       commingling of premarital assets into furnishing and purchasing the
       marital home, the court finds that no inequity has been done to
       Anna by failing to set aside any of the premarital assets in her
       previous home.

       Based on our de novo review of the record, we agree with the district

court’s ruling.

                  2.   Retirement Accounts

       Anna claims the court’s allocation of the proceeds from the parties’ various

retirement accounts was inequitable.            Prior to the parties’ separation, Anna

withdrew a total of $47,321 from her accounts. Anna testified the funds were

used to repay loans from her father and family expenditures. Also prior to their

separation, the parties’ entered into a written agreement concerning the
                                         7



distribution of $30,000 in David’s retirement policy. The assets were used to pay

marital debts listed in the written agreement.

       Addressing the retirement funds and the loan, the court reasoned:

               Anna claims there were significant loans totaling $46,600.00
       from her father to the parties over the course of their marriage.
       David disputed her claims that her father loaned the parties
       significant sums. Anna produced a document which she said was
       signed by herself and her father dated June 1, 2013. However, the
       Court also reviewed Exhibit 21, which provides a medical diagnosis
       about two weeks prior to that date which would significantly
       undermine the ability of Anna’s father to understand this
       documentation. In addition, this was supposedly signed just three
       days after Anna and David had entered into the agreement with
       regard to his 403(b) account and where no mention was made of
       any of these amounts. Anna admitted in testimony there were no
       loan documents ever prepared for any of these amounts. The
       weight of the credible evidence did not support Anna’s claims that
       her father made loans to the parties during the marriage.
               Shortly before and shortly after the separation of the parties,
       Anna cashed in her retirement accounts which totaled $47,321.65
       in payments to her. Of these amounts, she admits $28,000.00 was
       paid to her father as “repayment” for the loans she claims, and an
       additional $14,269.00 was utilized to make repairs to the new home
       her father purchased in Carson, Iowa. There is no evidence these
       expenses were for marital debts and both amounts should be
       included in Anna’s net asset listing.

We defer to the district court’s credibility findings and affirm the district court’s

distribution of these funds.

              3.     $10,000 Loan on David’s Life Insurance Policy

       Anna claims the $10,269.05 loan David borrowed from his life insurance

policy should have been included as his asset. We agree. At trial, David testified

he took out a $10,000 loan against his Prudential life insurance policy, and he

used those funds for living expenses and to repay his parents for a loan for his

attorney fees. This occurred before Anna moved out of the marital home. David
                                        8



was unsure whether he told Anna he took out the loan. When asked to elaborate

on what bills he used the loan for, David noted “[l]iving expenses. We were

accustomed to her bringing home money, and so we still had food and whatnot to

pay, gasoline; all those things.”

       Upon our de novo review of the record we find the $10,269.05 loan should

have been added to David’s assets. David’s loan suffers from the same lack of

support as Anna’s withdrawal from her retirement funds, and it would be

inequitable to exclude the loan from David’s assets. See Iowa Code § 598.21(5);

Hansen, 733 N.W.2d at 702. We modify the district court’s property distribution

to include the $10,269.05 loan as David’s asset. As a result, David shall make

an equalization payment of $5135 to Anna within sixty days.

              4.     Food Expenses

       Anna claims the inclusion of $2500 in “frozen food” as an asset to her was

inequitable. The food expenses were the result of a recent bill to a food coop

paid from a jointly held account. Since Anna received physical care of two of the

children she received two-thirds of the food, and David received the other one-

third of the food.    We find the district court’s allocation of the “food” was

equitable. See Iowa Code § 598.21(5); Hansen, 733 N.W.2d at 702.

       B.     Child Support

       Anna claims the district court incorrectly calculated child support by

imputing income to her, and by using David’s W-2 to calculate his income rather

than his year-end pay stub, showing a higher income. Anna contends the court
                                         9



should not have imputed income because she was fired from her prior employer

and is employed in a position which produces substantially less income.

              1.     Earning Capacity

       In determining if it is appropriate to use a parent’s earning capacity rather

than a parent’s actual earnings to meet the child’s needs or do justice between

the parties, courts will consider whether the parent’s inability to earn a greater

income is self-inflicted or voluntary. In re Marriage of McKenzie, 709 N.W.2d

528, 533 (Iowa 2006). This “self-infliction rule” applies equitable principles to the

determination of child support to prevent parents from gaining an advantage by

reducing their earning capacity and ability to pay support through improper intent

or reckless conduct. In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993).

       In the decree, the district court reasoned:

               Anna completed her doctorate in nursing practice in 2010.
       Until 2012, she had worked as a nurse practitioner in clinical
       settings. She recently began a new career teaching online nursing
       courses for three on-line schools. In 2012, she had an income from
       her previous employer of $67,270.00. In a little over two months of
       2013, she had earned $14,982.00 from that same employer. In her
       testimony, Anna indicates she was terminated from that
       employment after having a seizure while at work. She hired an
       attorney and was offered a job back with the company on a
       probationary basis. She declined that position. She testified that
       her seizure problem has been resolved by medication. However,
       she believed that she had an obligation to move in with her father in
       Carson, Iowa, to help care for him rather than have him reside in an
       assisted living facility. This move puts her further away from the
       Council Bluffs/Omaha metro area and the employment
       opportunities there. Anna testified that she choose to take a
       significant cut in pay in order to be home with her father and
       school-age children.
               Anna’s voluntary change in careers has resulted in a
       significant decline in her income. Her testimony revealed that her
       health was not the reason for her decision to reduce her income.
                                          10



         We find the district court properly imputed income to Anna. The record

shows Anna was offered an opportunity to return to her position on a

probationary basis, but declined. Instead, Anna took a lower paying position with

more flexibility to allow her time to care for her father and children.      Anna’s

change in employment was voluntary, and therefore imputing income to her was

proper. See In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997) (“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.”).

               2.       David’s 2013 Income

         Concerning the discrepancy in David’s paystub versus his W-2, the court

found:

         David produced his W-2 for the year 2013 which shows a gross
         salary of $70,297.79. Included on that W-2 is a notation as to an
         additional amount of $12,119.90. In reviewing David’s last pay stub
         for the year 2013, this is the amount of health insurance paid by his
         company on his behalf. Anna wanted the Court to use the income
         for David shown on his last pay stub, but it likely includes most, if
         not all, of this amount paid by the company for insurance and is not
         actual income to David.

         Pursuant to the factors listed in section 598.21(5), we find the district

court’s calculation of David’s income based on his W-2 was equitable.

               3.       Future Child Support Issues

         Anna claims the court failed to provide a step-down in the child support

obligation when only one child remains in her home. We agree and remand to

the district court for a determination of children support when only one child is

eligible for support.
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              4.    Tax Exemption

      Anna claims the court failed to address the child tax deduction when only

one child remains eligible for the exemption. “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 Kerber, 433 N.W.2d 53, 54 (Iowa Ct. App. 1988)

(citation omitted)); see also Iowa Ct. R. 9.6(5) (“The custodial parent shall be

assigned one additional dependent exemption for each mutual child of the

parents, unless a parent provides information that the noncustodial parent has

been allocated the dependent exemption for such child.”). We find based upon

the existing law and the facts of this case, Anna shall be awarded the tax

exemption.

      C.      Appellate Attorney Fees

      Finally, Anna requests appellate attorney fees. An award of attorney fees

is not a matter of right and rests within our discretion. In re Marriage of Okland,

699 N.W.2d 260, 270 (Iowa 2005).           We determine whether an award is

appropriate considering the needs of the party seeking the award, the other

party’s ability to pay, and whether the appeal required a party to defend the

district court’s decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.

App. 2007).    With these considerations in mind, we award Anna appellate

attorney fees in the amount of $1000.

IV.   CONCLUSION

      To summarize, we affirm all aspects of the district court’s decree of

dissolution except David’s $10,269.05 loan must be listed as his asset with an
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equalization payment made to Anna, the child support obligation for when one

child remains in the home must be calculated, and Anna should be granted the

tax exemption when only the youngest child may be claimed. We grant Anna’s

request for appellate attorney fees in the amount of $1000 and assess the costs

equally to the parties.

       AFFIRMED AS MODIFIED AND REMANDED.
