In re Marriage of Fennelly & Breckenfelder

• Decision Date: 20 July 2007
• Docket Number: No. 05-1765.,05-1765.
• Citation: 737 N.W.2d 97
• Parties: In re the MARRIAGE OF Michele Renee FENNELLY AND Ted Ernst BRECKENFELDER. Upon the Petition of Michele Renee Fennelly, Appellee, And Concerning Ted Ernst Breckenfelder, Appellant.
• Court: Iowa Supreme Court

737 N.W.2d 97

In re the MARRIAGE OF Michele Renee FENNELLY AND Ted Ernst BRECKENFELDER Upon the Petition of Michele Renee Fennelly, Appellee And Concerning Ted Ernst Breckenfelder, Appellant.

No. 05-1765.

Supreme Court of Iowa.

July 20, 2007.

Rehearing Denied August 21, 2007.

Frank Steinbach III of McEnroe, Gotsdiner, Brewer, Burdette & Steinbach, P.C., West Des Moines, and Arthur Buzzell, Davenport, for appellant.

Lori L. Klockau and Chad A. Kepros of Bray & Klockau, P.L.C., Iowa City, for appellee.

STREIT, Justice.

What is equitable in a divorce is an endless source of debate. Michele Fennelly and Ted Breckenfelder divorced after nearly fifteen years of marriage. They have two children. The district court gave Michele primary physical care of the children and Ted liberal visitation. The district court equally divided all of their property except property the parties brought to the marriage.

Ted argues he should have been awarded primary physical care or at least joint physical care of the children. Ted also complains of the district court's disparate treatment of their premarital property. Michele kept her premarital property which had significantly appreciated whereas Ted merely got the premarital value of his property. Because Michele is a competent and loving caretaker and both parties testified against joint physical care, we affirm the district court's award of primary physical care to Michele. We reverse the district court's property division because we find it equitable to equally divide the appreciation of all of the parties' premarital assets. However, because Ted dissipated marital assets through unexplained cash advances on his credit cards, we set aside $22,000 of debt for him. After setting aside the value of their premarital property at the time of the marriage and the $22,000 in cash advances, we order the parties' remaining assets and debts to be divided equally. We vacate the decision of the court of appeals. We remand to the district court so it may modify the decree in accordance with this decision.

I. Facts and Prior Proceedings

Michele and Ted were married in December 1990. At the time of the marriage, Michele had obtained a bachelor's degree in management information systems and Ted had obtained a bachelor's degree in finance and a law degree. Michele was a systems engineer at IBM and Ted practiced law at a Moline law firm.

Both parties owned assets at the time of the marriage. Ted owned an encumbered home located on Fairview Drive in Bettendorf, Iowa. Michelle owned IBM stock and an IBM tax deferred savings plan (TDSP).

Early on, the parties lived in the home on Fairview Drive. In 1993, they moved to a home on Barcelona Terrace in Bettendorf. The parties kept the Fairview Drive home as rental property. About this time, Ted started his own law firm. In 1994 Michele began working at Lee Enterprises where she currently is the director of technical support.

Michele and Ted have two children: Kevin, born November 25, 1991 and Caroline, born August 9, 1996. The parties utilized day care and baby sitters throughout the children's lives.

Michele filed for dissolution of marriage in 2001. The parties reconciled and Michele dismissed her petition. Thereafter, Ted began spending more time at home and became more involved in the children's care. In particular, Ted assumed a greater role in supervising the children after school and preparing meals. Ted also began devoting less time to his law practice.

Michele filed a second petition for dissolution in September 2004. Trial was held in June 2005. Michele was forty-two years old and Ted was forty-four.

At the time of trial, Michele's annual salary was $101,000 with the potential of earning another $30,000 in bonuses. In 2004, Ted earned $18,454 in net income from his law practice. Ted's average net income between 2001 and 2004 was just under $25,000 per year.

The district court awarded physical care of the children to Michele. Ted was awarded liberal visitation. The court also divided the parties' assets and debts. The court set aside for Michele the IBM stock she owned prior to the marriage and the portion of the IBM TDSP traceable to the premarital value of the account along with appreciation. These assets were worth $116,094 on the date of trial. Ted was given a $12,000 credit for the premarital net equity in the Fairview Drive home.¹ Thereafter, the court equally divided the parties' remaining debts and assets. In all, the net distribution was $446,326 for Michele and $354,244 for Ted.

Ted appealed. He argued the district court erred (1) by not awarding him physical care of the children; (2) by not considering joint physical care in the alternative; and (3) by not treating the parties' premarital assets similarly.

The court of appeals affirmed the district court's order in its entirety. On further review, Ted reasserts the arguments he made before the court of appeals. For the reasons that follow, we affirm the district court's award of primary care to Michele and reverse the district court's division of property.

II. Scope of Review

We review dissolution cases de novo. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). "`Although we decide the issues raised on appeal anew, we give weight to the trial court's factual findings, especially with respect to the credibility of the witnesses.'" Id. (quoting In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)). "Precedent is of little value as our determination must depend on the facts of the particular case." In re Marriage of White, 537 N.W.2d 744, 746 (Iowa 1995) (citing In re Marriage of Sparks, 323 N.W.2d 264, 265 (Iowa Ct.App. 1982)).

III. Merits

A. Physical Care of the Children

Iowa law distinguishes custody from physical care. Custody concerns the legal rights and responsibilities toward the child, including decisions "affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." Iowa Code § 598.1(5) (2005). Physical care, on the other hand, is "the right and responsibility to maintain a home for the minor child and provide for the routine care of the child." Id. § 598.1(7). When considering the issue of physical care, the child's best interest is the overriding consideration. We are guided by the factors set forth in Iowa Code section 598.41(3) as well as those identified in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). If joint physical care is not appropriate, "the court must choose one parent to be the primary caretaker, awarding the other parent visitation rights." In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007).

Ted argues the district court should have awarded him physical care so the children may continue to live in the Barcelona Terrace home, which was awarded to him. Additionally, Ted argues he is better suited to be the primary physical caretaker because he spends less time working in comparison to Michele.

The district court found both parents to be suitable caretakers for the children. We agree. The record is replete with evidence of both parties' love and devotion to their children. At the end of the trial, the court noted the conundrum it faced in deciding who should be awarded physical care because both parties are great parents. The district court had the opportunity to observe the witnesses and concluded primary care should be awarded to Michele. The district court awarded Ted the following visitation schedule: every third weekend (Friday 5 p.m. through Sunday 5 p.m.) and weekly "mid-week" visitation (Sunday 5 p.m. through Tuesday morning while school is in session and 5 p.m. when it is not). We see no reason to disturb the district court's decision. Ted conceded Michele is a competent caretaker and acknowledged plans to "ramp up" his law practice.

Alternatively, Ted claims the district court erred by not awarding the parties joint physical care of the children. Under Iowa Code section 598.41(5)(a),

the court may award joint physical care . . . upon the request of either parent. If the court denies the request for joint physical care, the determination shall be accompanied by specific findings of fact and conclusions of law that the awarding of joint physical care is not in the best interest of the child.

Contrary to Ted's assertion on appeal, this passage does not create a presumption in favor of joint physical care. In re Marriage of Hansen, 733 N.W.2d 683, ___ (Iowa 2007). Rather, our statutory scheme simply makes joint physical care a viable option if it is in the child's best interest. We recently said "[t]he critical question in deciding whether joint physical care is . . . appropriate is whether the parties can communicate effectively on the myriad of issues that arise daily in the routine care of a child." Hynick, 727 N.W.2d at 580.

The parties dispute whether Ted requested joint physical care in the original proceedings. Ted's answer to Michele's petition sought "the parties' joint shared physical custody of their children." In his opening statement at trial, Ted's attorney stated the court needed to decide "whether shared physical custody is appropriate in this case." Since the parties previously agreed to joint legal custody, we find it obvious Ted was requesting "joint physical care" even though he did not use those exact words. Moreover, the term "physical" connotes something more than the right to make legal decisions. We have never held a party must use magic words to convey a desire for "joint physical care." Nor are we interested in creating a trap for the unwary with respect to something so paramount.

Because the court did not award joint physical care, it normally would be required to specifically explain why joint physical care is not in the children's best interest. Iowa Code § 598.41(5)(a). However, no specific finding was required in the present case because Ted abandoned his request for joint physical care during the...