                   IN THE COURT OF APPEALS OF IOWA

                                    No. 18-0419
                             Filed December 19, 2018


IN RE THE MARRIAGE OF CAROL ANNE NEILS
AND THOMAS LEE NEILS

Upon the Petition of
CAROL ANNE NEILS,
      Petitioner-Appellee,

And Concerning
THOMAS LEE NEILS,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Thomas Neils challenges the economic, child support, and visitation

provisions of the decree dissolving his marriage to Carol Neils. AFFIRMED.



      Jaclyn M. Zimmerman of Miller, Zimmerman & Evans, P.L.C.,Des Moines,

and Aaron W. Lindebak of Grefe & Sidney, P.L.C., Des Moines, for appellant.

      Danni J. Harris of Hope Law Firm, PLC, West Des Moines, for appellee.




      Considered by Danilson, C.J., and Potterfield and Doyle, JJ.
                                                 2


DOYLE, Judge.

          Thomas Neils challenges the economic, child support, and visitation

provisions of the decree entered dissolving his marriage to Carol Neils. Upon our

de novo review, we affirm.

          I. Scope and Standards of Review.

          We review dissolution of marriage cases, including issues concerning

economic provisions as well as child custody and visitation provisions, de novo.

See Iowa R. App. P. 6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa

2018); Callender v. Skiles, 623 N.W.2d 852, 854 (Iowa 2001). We decide anew

the issues raised, but give weight to the district court’s factual findings, especially

with respect to the credibility of the witnesses, since “the district court was able to

listen to and observe the parties and witnesses.” See In re Marriage of Gust, 858

N.W.2d 402, 406 (Iowa 2015); In re Marriage of McDermott, 827 N.W.2d 671, 676

(Iowa 2013); McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010).

          II. Background Facts and Proceedings.

          Thomas and Carol married in 1998. They have two children; their youngest

was born in 2001.1 At the end of 2016, Carol filed a petition seeking dissolution of

the parties’ marriage. Trial on the matter was held in September 2017.

          The district court awarded the parties joint legal custody of their minor child

and placed that child in Carol’s care, with Thomas having visitation. The district

court ordered the parties to work out a visitation schedule guided by the child’s

best interests. For purposes of calculating child support, the court determined



1
    The parties’ eldest child was an adult by the time of trial.
                                         3


Thomas’s earning capacity was $50,000 and imputed that amount to him as his

income. In dividing marital assets, the court generally awarded to each party

property held in that party’s individual name; Carol was awarded 100% of her

retirement accounts, and Thomas was awarded 100% of his retirement accounts.

The court likewise divided marital debts. The court awarded Carol the marital

residence, and before dividing the value of the property between the parties, the

court determined Thomas was entitled to an offset of $123,000 for his initial down

payment for their residence. Ultimately, the district court directed Carol to pay to

Thomas $187,500 as a property-settlement-equalization payment.

       Thomas now appeals.        Other background facts will be discussed as

necessary below.

       III. Discussion.

       Thomas argues the court erred in calculating his child-support obligation.

He also asserts the court should have set a visitation schedule, and, in not doing

so, the court essentially set his visitation at Carol’s discretion. Finally, Thomas

contends the district court’s property distribution was inequitable, and he maintains

awarding him one-half of Carol’s retirement accounts would achieve equity

between the parties.

       A. Child Support and Thomas’s Income.

       “In Iowa, child support is calculated using the child support guidelines.” In

re Marriage of Erpelding, 917 N.W.2d 235, 245 (Iowa 2018); see also Iowa Code

§ 598.21B(1) (2016); Iowa Ct. R. 9.2. “The purpose of the guidelines is to provide

for the best interests of the children by recognizing the duty of both parents to

provide adequate support for their children in proportion to their respective
                                           4


incomes.” Iowa Ct. R. 9.3(1). “To compute the guideline amount of child support,”

the district court must first compute the adjusted net monthly income of each

parent. Iowa Ct. R. 9.14. That amount is ascertained by first determining each

parent’s gross monthly income. See Iowa Ct. R. 9.14(1).

       Under the guidelines, “‘gross monthly income’ means reasonably expected

income from all sources.” Iowa Ct. R. 9.5(1). However, “the court shall not impute

income” to a party “except . . . [p]ursuant to agreement of the parties, or . . . [u]pon

request of a party, and a written determination is made by the court under rule

9.11.” Iowa Ct. R. 9.5(1)(d)(1), (2). Rule 9.11(4) permits the court to

       impute income in appropriate cases subject to the requirements of
       rule 9.5. If the court finds that a parent is voluntarily unemployed or
       underemployed without just cause, child support may be calculated
       based on a determination of earning capacity. A determination of
       earning capacity may be made by determining employment potential
       and probable earnings level based on work history, occupational
       qualifications, prevailing job opportunities, earnings levels in the
       community, and other relevant factors. The court shall not use
       earning capacity rather than actual earnings or otherwise impute
       income unless a written determination is made that, if actual earnings
       were used, substantial injustice would occur or adjustments would
       be necessary to provide for the needs of the child(ren) or to do justice
       between the parties.

(Emphasis added); see also In re Marriage of McKenzie, 709 N.W.2d 528, 533

(Iowa 2006).

       On appeal, Thomas points out the district court’s decree did not include a

written rule 9.11(4) determination to account for imputing his earning capacity

instead of using his actual annual earnings of approximately $14,500. He further

argues he is not voluntarily underemployed, and, alternatively, even if the court

correctly concluded he was so underemployed, $50,000 far exceeds his actual
                                          5


earning capacity. He requests his support obligation be recalculated using his

actual earnings.

       It is true the district court did not make any written determinations in its

decree expressly stating “that, if actual earnings were used, substantial injustice

would occur or adjustments would be necessary to provide for the needs of the

[child] or to do justice between the parties,” as required by rule 9.11(4).

Nevertheless, on our de novo review, the record supports the findings that

Thomas’s earning capacity is in the range of $50,000 annually, that Thomas is

voluntarily underemployed, and that adjustments would be necessary to provide

for the children and do justice between the parties if actual earnings were used to

calculate Thomas’s child support obligation.

       1. Earning Capacity.

       Thomas has a bachelor’s degree with majors in computer science and

finance. He worked full-time in the field of information technology (IT) until he

stopped working altogether about nine years prior to the trial. His full-time earnings

fluctuated; for example, he earned about $63,000 in 2002 but nothing in 2003. In

2004, he earned approximately $54,000 but only about $5000 in 2005. In 2007,

he earned $18,496 but only $2880 in 2008. He stopped working in 2009, and he

was not gainfully employed again until early 2017 when he started working in a

grocery store’s kitchen approximately twenty-eight hours per week at ten dollars

per hour. Despite his underemployment, Thomas was able to pay off both marital

homes’ mortgages, testifying he merely “made extra payments on the principal.”

The court found his testimony “regarding how he was able to pay the mortgages

off for both marital homes in such a short time based upon the income of the parties
                                        6


during that time period” to be evasive. The court further noted “throughout most

of the marriage it appears that Thomas has kept private many aspects of his

finances, accounts, and investments.”

      2. Voluntary Underemployment.

      Additionally, the court clearly did not find credible Thomas’s testimony that

he and Carol agreed Thomas would become a stay-at-home-dad when his

employment ended in 2009. The court found

              For over nine years Thomas decided not to work at all and to
      be what he termed as a stay-at-home parent. Thomas was a stay-
      at-home parent in name only as many of the responsibilities of a
      parent fell to Carol nevertheless. During the time in which Thomas
      was unemployed, although he did attend practices and activities of
      the children in regard to sports, the time that Thomas spent with the
      children was no greater than that spent by Carol with them also. In
      fact, for a stay-at-home parent Thomas appeared to have a lot of
      time for himself. The children were often put in daycare even though
      Thomas was at home. Thomas was able to exercise regularly at the
      YMCA and not be present at most family dinners prepared by Carol.
      Indeed, Carol continued to do most of the parent and family duties
      including cooking, cleaning, attending the children’s school
      conferences and sports activities, taking the children to their medical
      and dental appointments, and otherwise being more involved with
      the day-to-day parental and family needs and responsibilities for the
      family and specifically for the children. Carol was also the main
      income earner for a significant amount of time while Thomas
      remained unemployed by his own volition. Other than the complaint
      made by Thomas concerning his back, there appears to be no
      reason whatsoever why Thomas could not continue at the job he
      previously had in IT or to find further employment in that specific
      career area. Thomas’s recent attempts at obtaining employment in
      March and April of 2017 and ending up with a part-time job at a Hy-
      Vee store is a halfhearted attempt to reenter the job market. The
      requested spousal support by Thomas indicates that he would
      continue either to work minimal hours or not to work at all. Thomas
      is quite capable of upgrading and bringing up to date his skills in the
      IT area. In fact, he attempted to do so by entering classes at Des
      Moines Area Community College. There is no reason why Thomas
      could not earn the income he earned prior to removing himself from
      the work force.
                                          7


       Upon our de novo review of the record, we wholeheartedly agree with the

district court’s assessment. Generally speaking, there is no question that being a

stay-at-home parent is in and of itself a demanding full-time job, and we do not

diminish such a role’s difficulty and importance to a family. But here, as the district

court found, the record shows the title as used by Thomas was in name only. By

the time of trial, Thomas essentially lived as a roommate that looked after himself,

assisted with an occasional bill, and, at times, supervised the parties’ children.

Carol basically did it all, though not by choice.

       3. Adjustments Needed to Provide for the Children and Do Justice

Between the Parties.

       We believe the district court’s factual findings and conclusions balancing

the parties’ abilities and actions is a minimally sufficient written finding that

imputing Thomas’s income is necessary to do justice between the parties. See,

e.g., In re Marriage of LeGrand, No. 13-0662, 2014 WL 1056696, at *5 (Iowa Ct.

App. Mar. 12, 2014) (“We disagree that the district court’s findings give rise to the

inference that substantial injustice would occur. We do find, however, that the

court’s balancing of Allan’s ability to work full time and Connie’s long-term

employment history with Nagle, coupled with her continuing and future care of the

children, is a minimally sufficient written finding that imputing Allan’s income is

necessary to do justice between the parties.”). Here the district court found there

were financial strains on the household when Carol tried to meet the children’s

needs with her income alone. The court found:

              In fact, the failure of Thomas to work either full time or part
       time caused considerable financial strain upon the family. This
       financial strain was not taken seriously by Thomas. Carol would at
                                             8


       times request financial help from Thomas for the family. Thomas
       denied that Carol would request money for family expenses. At times
       expenses and finances were stressed to the point that Carol would
       either give blood or borrow money from one of the children.

For the reasons stated above, we do find (1) Thomas’s employment potential, his

past earnings, and other relevant factors support the determination that he has an

earning capacity of at least $50,000 annually, (2) Thomas is voluntarily

underemployed, and (3) if Thomas’s actual earnings rather than his earning

capacity were used in determining his child support obligation, adjustments would

be necessary to provide for the children and do justice between the parties.2

       Because deviation from the guidelines was appropriate under the facts of

this case, we find no error in the district court’s ultimate child-support-obligation

determination. We therefore affirm on this issue.

       B. Visitation.

       Thomas also requests a visitation and holiday schedule be set, arguing the

court’s failure to set a schedule essentially gave all the power to Carol, and as

such, Carol could “decide not to mutually agree with any proposal Thomas makes,

and lawfully deprive the children of time with their father.”           Thomas cites an

unpublished case from a panel of this court remanding a visitation issue back to

the district court to set a schedule. See Thompson v. Fowler, 17-0284, 2017 WL

6513973, at *3 (Iowa Ct. App. Dec. 20, 2017). That case is distinguishable. In

Thompson, the district court’s ruling had placed visitation with the parties’ child in

one parent’s sole discretion. See id. That is not the case here. Rather, the district


2
 We note the record also factually supports the alternatives stated in rule 9.11(4), that, if
Thomas’s actual earnings rather than his earning capacity were used in determining his
child support obligation, substantial injustice would occur.
                                            9


court’s decree permits the parents to mutually work out a visitation and holiday

schedule. There is no evidence the parties could not work together to create an

accommodating schedule.        Given the age of the minor child and the child’s

extensive extracurricular activities, permitting the parties to work together to

fashion a schedule is clearly in the child’s best interests.

       Furthermore, we note the parties’ minor child is now seventeen years old.

The parties provided him with a vehicle to use and agreed to turn the vehicle over

to him when he reached age eighteen. The decree provides the vehicle shall be

turned over to the child once he reaches age of majority. At the time of trial,

Thomas still lived in the Ankeny marital home and worked in Des Moines. There

was no indication that Thomas intended to move from the Des Moines metropolitan

area after the dissolution. With that in mind, there is no reason the minor child

cannot drive to his father’s residence anytime he wants to visit his father.

       We affirm on the visitation issue.

       C. Property Distribution.

       Finally, we turn to the district court’s property-distribution determination.

Iowa Code section 598.21(5) requires marital property be divided equitably in

dissolution-of-marriage cases. See In re Marriage of Hansen, 733 N.W.2d 683,

702 (Iowa 2007). This first requires a determination of which property is subject to

division, and then, considering the factors set forth in section 598.21(5), that

property must be divided equitably. See In re Marriage of Fennelly, 737 N.W.2d

97, 102 (Iowa 2007).

       In determining which property is subject to division, we consider not only

“property acquired during the marriage by one or both of the parties, but property
                                          10


owned prior to the marriage by a party,” with the understanding that, under section

598.21, “property brought into the marriage by a party is merely a factor to consider

by the court, together with all other factors, in exercising its role as an architect of

an equitable distribution of property at the end of the marriage.” In re Marriage of

Schriner, 695 N.W.2d 493, 496 (Iowa 2005).            Ultimately, any “[p]roperty not

excluded is included in the divisible estate.” Id.

       “The partners in the marriage are entitled to a just and equitable share of

the property accumulated through their joint efforts,” In re Marriage of Hazen, 778

N.W.2d 55, 59 (Iowa Ct. App. 2009), but it “is important to remember marriage

does not come with a ledger,” Fennelly, 737 N.W.2d at 103. In determining how

to equitably divide the property, an “equitable division is not necessarily an equal

division.” Hansen, 733 N.W.2d at 702. Though “it is generally recognized that

equality is often most equitable,” Fennelly, 737 N.W.2d at 102, “[e]quitable

distribution depends upon the circumstances of each case,” Hansen, 733 N.W.2d

at 702. Consequently, precedent is of little value. See McDermott, 827 N.W.2d at

682. “[K]eeping in mind there are no hard and fast rules governing economic

issues in dissolution actions,” we must apply the factors contained in section

598.21(5) in reaching an equitable division. Id.

       The district court noted “[t]he assets of both Carol and Thomas are

considerable,” and the court listed valuations of various bank and retirement

accounts in each party’s name, as well as the parties’ joint bank account. The

court found Carol’s assets included three retirement and IRA accounts worth a

total value of $727,652. Thomas’s assets comprised several accounts, three of

which were IRAs, altogether worth a total value of $405,966. The district court
                                         11


awarded each party the accounts in his or her name without any equalization

offsets. The court also awarded each party his or her vehicle, the values of which

were similar, and the court directed the parties to equally divide their joint bank

account.

       The district court awarded Carol the marital home, valued at $252,000, as

well as its furnishings and appliances. The court noted the parties disagreed upon

the furnishings’ approximated valuation—Carol suggested $13,000, Thomas

$20,000—and ordered Carol to “pay Thomas $5,000 as property equalization

payment for the home furnishings.” Additionally, in a separate paragraph titled

“Property Settlement Equalization,” the court decreed:

              Carol shall pay to Thomas $187,500 as a property settlement
       equalization payment. Judgment is hereby entered against Carol in
       the amount of $187,500 for said property settlement equalization
       payment . . . . The equalization payment was arrived at by awarding
       Thomas the initial down payment for the marital home ($123,000)
       plus one-half of the remaining equity of the marital home. ($252,000-
       $123,000=$129,000. This sum is divided one-half each with
       Thomas’s one-half then added to the $123,000 for a total of
       $187,500).

       Thomas asserts the court’s division was inequitable because the court

awarded Carol a greater share of their marital assets. He points out Carol’s

retirement accounts were acquired during the marriage, and he maintains that the

court should have at least divided the accounts equally. He also notes Carol has

a defined benefit plan that she will receive when she retires of about $9000

annually that was not included in the property division. Thomas suggests an

equitable property division would require increasing the amount of his equalization

payment by about $200,000. Carol argues the amount of $187,500 awarded by

the district court is equitable. We agree.
                                         12


       Upon our de novo review of the record, considering all of the relevant

factors, we find the court’s award of $187,500 was equitable under the

circumstances of the case. Thomas did not work for nine years of the parties’

marriage, and Carol was required to cover almost all of the parties’ expenses

during that time. The court found Thomas’s testimony concerning his finances to

be evasive, and Carol testified she did not even know about several of the accounts

disclosed by Thomas despite their long relationship. All things considered, we

agree with the district court that requiring Carol to pay Thomas an equalization

payment of $187,500 was an equitable division of the parties’ marital property.

Accordingly, we affirm on the issue.

       IV. Conclusion.

       Upon our de novo review, we find deviation from the child-support

guidelines to use Thomas’s earning capacity of $50,000 was appropriate under the

facts of this case. Additionally, the court’s determination the parties should create

a visitation schedule together is proper under the facts of the case. Finally, the

equalization payment as calculated equitably divided the parties’ marital property.

Accordingly, we affirm the district court’s dissolution decree in all respects.

       AFFIRMED.
