In re Freund

• Decision Date: 29 February 2012
• Docket Number: No. 11–0839.,11–0839.
• Parties: In re the MARRIAGE OF Rhea Carol FREUND and Anthony Gerard Freund Upon the Petition of Rhea Carol Freund, Petitioner–Appellee/Cross–Appellant, and Concerning Anthony Gerard Freund, Respondent–Appellant/Cross–Appellee.
• Court: Iowa Court of Appeals

814 N.W.2d 622

In re the MARRIAGE OF Rhea Carol FREUND and Anthony Gerard Freund

Upon the Petition of Rhea Carol Freund, Petitioner–Appellee/Cross–Appellant,

and

Concerning Anthony Gerard Freund, Respondent–Appellant/Cross–Appellee.

No. 11–0839.

Court of Appeals of Iowa.

Feb. 29, 2012.

Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.

Two spouses appeal provisions within a decree dissolving their marriage. AFFIRMED AS MODIFIED AND REMANDED.

Becky S. Knutson of Davis Brown Law Firm, Des Moines, for appellant.

J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellee.

Heard by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.

TABOR, J.

Anthony (Tony) Freund appeals and Rhea Freund cross-appeals from provisions in the decree dissolving their twenty-three year marriage. Both parties challenge the district court's division of their substantial farm holdings, issues relating to their five children, alimony, and attorney and expert fee awards.

Because the district court achieved an equitable division of the property, we largely affirm the economic provisions of the decree. We do modify the decree in five respects, two of which require action by the district court on remand. First, on the issue of visitation, we incorporate the parties' agreed-upon fall-back schedule. Second, we remand the case for the district court to recalculate the amount of child support Tony must pay, pursuant to the child support guidelines, based on identified income figures for both parents. Third, during the remand, the district court should determine if good cause exists under Iowa Code section 598.21F (2009) to require either or both parents to pay a postsecondary education subsidy for their three oldest children; the court also should amend the decree to retain jurisdiction to consider college funding for the two youngest children if requested in the future. Fourth, we find the court's omission of the bin site on the assets and liabilities portion of the decree was a scrivener's error requiring an increase in Tony's equalization payment to Rhea by $14,630. Fifth and finally, we find the court erred in crediting Tony for the $20,000 in attorney fees he paid on Rhea's behalf from marital funds, and order Tony's equalization payment be increased by $10,000 to reflect a reciprocal credit for Rhea.

I. Background Facts and Procedures

Tony Freund was born in 1955. About a year after graduating high school, he started farming with his father and brothers. Rhea was born in 1963. After completing her high school studies, she attended Iowa Western Community College for one year, and began working as a dental assistant.

The couple married on September 12, 1987. They have five children. Two daughters, Marie, born in 1988, and Brandi, born in 1990, were finishing their college degrees in Omaha at the time of the dissolution. The three youngest children—Alex, born in 1992; Jeana, born in 1998; and Nicholas, born in 2001—lived at home.

Through land purchases and inheritance, the family accumulated a sizeable farming operation and acquired a net worth of $5.78 million. Throughout the marriage, Tony and his brother, Mike, farmed what is now nearly 1500 acres, while Rhea worked primarily as a stay-at-home mother. Rhea was employed outside the home one day a week as a dental assistant. The couple maintained joint accounts, and Tony controlled the family's finances.

In October 2009, Tony and Rhea separated. Tony and Alex moved into a farm house previously occupied by Tony's parents. Rhea stayed in the family home with Jeana and Nicholas, the two youngest children. Rhea filed for divorce on October 6, 2009. The district court entered a temporary order on August 9, 2010, granting joint legal custody of the children. The order required Tony to pay Rhea $1500 a month for temporary alimony, $1200 monthly for child support, and a lump sum of $20,000 within thirty days. The court also ordered Tony to continue paying for the family's home, medical care and insurance expenses.

The district court dissolved the marriage on March 21, 2011. Pursuant to the parties' agreement, the court divided the property so that the farming assets and real estate would remain with Tony, except for the land previously owned by Rhea's family. The court accounted for the disproportionate division of the land by ordering Tony to pay a cash settlement to Rhea.

Neither party was satisfied with the terms of the decree. Tony filed a motion to enlarge, modify or amend, challenging the college education subsidy for the three youngest children, the mortgage to the house retained by Rhea, and Rhea's attorney and expert fees. He contested the division of assets, machinery, and equipment, as well as the visitation and support provisions. Rhea also filed a motion to enlarge, modify or amend the decree. Among other things, she challenged the attorney fees credited to Tony, the real estate valuation, and the interest rate on the cash settlement. On April 25, 2011, the court denied both motions. Tony appealed and Rhea cross-appealed.

II. Standards of Review

Dissolution decrees are equitable proceedings; therefore, our review is de novo. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2006). We give weight to the district court's fact findings, especially when considering witness credibility, but are not bound by them. In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct.App.2009). We review the attorney fee award for abuse of discretion. In re Marriage of Sullins, 715 N.W.2d 242, 247, 255 (Iowa 2006).

III. AnalysisA. Whether the District Court Properly Determined the Visitation Schedule and Child Support Payments

1. Visitation

Tony challenges the visitation portion of the decree, arguing the court erred by failing to incorporate the fall-back agreement included in the parties' stipulation.

At the time of trial, the two youngest children lived with Rhea and the older son lived with Tony. The parties agreed to a liberal visitation schedule, where any of the three children could visit the other parent at any time. Alex could pick up his younger siblings, and they could go deer hunting, fishing, ride in the farm equipment, attend church, and spend time with their father, so long as they let Rhea know their whereabouts. Both parents intended this arrangement to be incorporated in the dissolution decree.

Before any witnesses testified, Rhea's attorney made a record of stipulations reached by both sides, including a stipulation as to visitation:

We have proposed pretty much an open visitation schedule, and if that doesn't work, the parties will fall back to a specific visitation schedule which Mr. Mailander and I have, I think, worked out. There may be some little language issues.

Tony's attorney concurred: “that's the agreement as I understand it.” The court admitted the fall-back schedule as trial exhibit FF. It reads, in part:

In the event the parties cannot agree on visitation, Jeana and Nicholas shall be allowed the following visitation schedule with Anthony:

(a) Every other weekend from Friday at 5:00 p.m. until Sunday at 5:00 p.m.

(b) Tuesday and Thursday evenings from 5:00 p.m. until 8:00 p.m.

(c) [schedule to alternate holidays]

(d) Every mother's Day with Rhea and every Father's day with Anthony.

(e) Summer visitation consisting of up to one week in June, one week in July, and one week in August, not to be exercised consecutively.

Rhea testified that the couple agreed Jeana and Nicholas would continue to live with her, and Alex would live with Tony, subject to open visitation. She referred to the exhibit as reflecting their contingency plan if problems arose with the voluntary visitation agreement. In his testimony, Tony agreed to the open visitation schedule and the fall-back provisions. The decree included the current physical care and visitation arrangement as described by the parties, but overlooked the fall-back stipulation. The court did not explain the omission.

Our top priority when considering visitation issues is the best interests of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App.1992). Generally, liberal visitation promotes the children's best interest. Id. In so far as is reasonable, courts should try to assure children “maximum continuing physical and emotional contact with both parents” after a divorce. Iowa Code § 598.41(1)(a).

In this case, the parties have worked well together to ensure that the children enjoy continuing contact with both parents and their siblings. Tony and Rhea reported no dissension regarding the voluntary visitation agreement. They both testified they accepted the fall-back provisions in case of future strife over visitation. A district court presiding over dissolution proceedings retains the power to reject the parties' stipulation if it is unfair or contrary to law. In re Marriage of Briddle, 756 N.W.2d 35, 40 (Iowa 2008). But in this case, the district court noted in its ruling on post-trial motions that it accepted Tony's position on visitation as set forth in his stipulation.

Given this record, it appears that the district court's failure to expressly adopt the fall-back provision may have been an oversight. Moreover, we believe that incorporating the back-up provision would be in the best interests of the children. If the present voluntary agreement becomes unworkable, the fall-back schedule will provide the parties with enforceable provisions without the necessity of returning to court for modification.

We have modified visitation provisions to include similar fall-back agreements on several occasions. See, e.g., In re Marriage of Malloy, 687 N.W.2d 110, 114 (Iowa Ct.App.2004) (establishing liberal visitation rights with a fall-back provision “if they cannot agree”); Northland v. Starr, 581 N.W.2d 210, 214 (Iowa Ct.App.1998) (imposing similar “[i]f the parties cannot agree” clause); In re Marriage of Wiarda, 505 N.W.2d 506, 509 (Iowa Ct.App.1993) (...