In re Marriage of Keller

CourtCourt of Appeals of Iowa
PartiesIN RE THE MARRIAGE OF JODIE LYNN KELLER AND MARK ALAN KELLER Upon the Petition of JODIE LYNN KELLER, Petitioner-Appellee, And Concerning MARK ALAN KELLER, Respondent-Appellant.
Docket Number21-0122
Decision Date22 September 2021

IN RE THE MARRIAGE OF JODIE LYNN KELLER AND MARK ALAN KELLER Upon the Petition of JODIE LYNN KELLER, Petitioner-Appellee, And Concerning MARK ALAN KELLER, Respondent-Appellant.

No. 21-0122

Court of Appeals of Iowa

September 22, 2021


Appeal from the Iowa District Court for Clarke County, John D. Lloyd, Judge.

Mark Keller appeals an award of physical care, the distribution of assets, and the denial of spousal support.

David E. Brick and Allison M. Steuterman of Brick Gentry, P.C., West Des Moines, for appellant. Donna R. Miller of Miller, Zimmerman &Evans, PLC, Des Moines, for appellee.

Considered by Tabor, P.J., and Greer, J., and Doyle, S.J. [*]

TABOR, PRESIDING JUDGE.

Jodie and Mark Keller divorced after nearly two decades of marriage. Mark now challenges the physical care arrangement for their middle child, M.A.K.; the child support calculation; the division of assets; an order to return funds; and the denial of spousal support. Jodie defends the decree and seeks appellate attorney fees. Because the district court did equity on the financial matters, we affirm those decisions. But because the decree lacks a compelling reason for splitting physical care of the siblings, we modify the determination of M.A.K.'s physical care and remand for child support recalculation. Finding the parties are on similar fiscal footing, we decline Jodie's request for appellate attorney fees.

I. Facts and Prior Proceedings

The Kellers were married in 2002. They have five children, [1] three of whom were minors during the divorce proceedings.[2] After their separation, Mark and Jodie enjoyed joint physical care of the children. But over time that arrangement deteriorated. Rather than continue to split time between their parents' homes, the two daughters-in the words of the district court-"chose sides." M.E.K. decided to live with Mark, while her younger sister, M.A.K., stayed with Jodie. M.E.K. turned eighteen while this appeal was pending and will no longer be subject to the custody arrangements.

At the divorce trial, Mark requested physical care of M.E.K. Jodie did not contest this arrangement. But Mark did object to M.A.K. staying with Jodie. After hearing testimony from Mark, Jodie, and M.A.K.'s therapist, the district court split custody, granting each parent physical care of one of the daughters.[3]

Since 1994, Jodie has worked for the Iowa Department of Human Services (DHS) in central Iowa. In the years before their divorce, Jodie earned between $75, 000 and $82, 000. By contrast, Mark's career took him farther from home. He mostly stayed on the water, at various times working in offshore drilling, on a cruise ship, and as a commercial fisherman. In 2005, Mark bought a boat and a red snapper permit, which he personally used in his commercial fishing enterprise. But a change in federal regulation transformed the permit into an Individual Fishing Quota (IFQ). To maximize his profits, Mark leased the IFQ rather than use it himself. Mark treated those fees as his primary income. In the years before their separation, the IFQ lease produced between $108, 000 and $130, 000 annually.

During the divorce proceedings, Jodie retained her DHS job. But she sought a new position within the agency. As with any new job, this position came with some benefits and some drawbacks: offering more stable and regular hours, but no chance for overtime and a lower income. Like Jodie, Mark's employment prospects have changed since the divorce proceedings began. He has continued to lease the IFQ. But health issues and the realities of (part-time) single parenthood ended his mariner days. And although he has applied for more traditional forms of employment, he hasn't landed a job yet.

The IFQ played a starring role in district court, and it has an encore performance in this appeal. First, the court determined the IFQ was marital property, and, as such, subject to equitable distribution. Over Mark's objection, the court divided the IFQ equally between Mark and Jodie. The court also ordered Mark to reimburse $20, 000 in IFQ income he took from the joint bank account.

Second, as an income-generating asset, the IFQ factored into the court's spousal and child support analyses. Because Jodie and Mark had different plans for their share of the IFQ-to sell and to retain, respectively-the court calculated different incomes from the asset. Whereas Mark was assigned $67, 000-one-half of the IFQ's historic earnings-Jodie was responsible for $19, 500-the expected return of investment from the IFQ's sale. Using these numbers, the court denied Mark's request for spousal support, finding he was self-sufficient. Similarly, these figures factored into the child support calculation. In round numbers, Mark owed a net amount of $200 per month while all three children were minors, $900 after M.E.K. turned 18, and $40 after M.A.K. turned 18.

Mark now appeals, raising five issues: (1) the physical care determination for M.A.K., (2) the child support calculation, (3) the...

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