Keller v. & Concerning Mark Alan Keller

• Decision Date: 22 September 2021
• Docket Number: No. 21-0122,21-0122
• Citation: 967 N.W.2d 224 (Table)
• Parties: 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.
• Court: Iowa Court of Appeals

967 N.W.2d 224 (Table)

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.

Filed September 22, 2021

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 IFQ's fate, (4) the $20,000 reimbursement, and (5) the spousal support denial. Jodie resists on each point and requests appellate attorney fees.

II. Scope and Standards of Review

We review dissolution cases de novo. Iowa R. App. P. 6.907 ; In re Marriage of Larsen , 912 N.W.2d 444, 448 (Iowa 2018). We give weight to the fact findings of the district court, particularly on witness credibility, but they do not bind us. See In re Marriage of Sullins , 715 N.W.2d 242, 247 (Iowa 2006). Because the particular facts of each case are vital to the resolution, "precedent is of little value." In re Marriage of Brown , 776 N.W.2d 644, 647 (Iowa 2009) (citation omitted).

III. Analysis

A. Should the parents have joint physical care of the two youngest children?

Mark first challenges the award of M.A.K.’s physical care to Jodie. He contends the parents should have joint physical care of both M.A.K. and J.Z.K.

We first consider whether joint physical care is desirable under these circumstances. There is no presumption for joint physical care. In re Marriage of Hansen , 733 N.W.2d 683, 695 (Iowa 2007). Instead, an award hinges on the child's best interests. Id. When considering joint physical care, we turn to this non-exhaustive list of factors: (1) the promotion of stability and continuity; (2) the degree of communication and mutual respect between the parents; (3) the level of discord and conflict before the divorce; and (4) how well the parents agree on matters of routine care. Id. at 697–700.

As for the first factor, both Mark and Jodie participated in child care during their marriage.⁴ And, early in the divorce proceedings, they entered a temporary agreement providing for joint physical care of all three children. For about a year, Mark and Jodie operated under that agreement without major issue. It was only five weeks before trial that M.A.K. refused to honor the shared-care arrangement. But even when their daughters each aligned with one parent, the other parent tried to repair the rifts. For example, Mark urged M.E.K. to reconcile with Jodie. And Jodie encouraged M.A.K. to communicate with Mark. But most telling is that the shared-care arrangement continues for their youngest child, J.Z.K. Given these circumstances, we believe joint physical care is appropriate under the Hansen factors.

We next consider whether joint physical care is in M.A.K.’s best interests. We begin with the presumption that "siblings should usually not be separated." In re Winter's Marriage , 223 N.W.2d 165, 166 (Iowa 1974) (citation omitted). This presumption recognizes siblings should not become ships passing in the night after a divorce. Instead, because siblings benefit from constant association, courts must identify a good and compelling reason before ordering separation. In re Marriage of Smiley , 518 N.W.2d 376, 380 (Iowa 1994) ; see Iowa Code § 598.41(5)(a) (2019) (setting out that care "determination should 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").

Here the district court's findings of fact leave us wanting for that reason. And the trial record itself is no more fruitful. On the surface, separating the teenage sisters cements battle lines that formed in the months before the divorce trial. Apparently, those fronts reflected the teenagers’ preferences. Granted, M.A.K.’s physical-care preference is a valid factor. See In re Marriage of Behn , 416 N.W.2d 100, 101–02 (Iowa Ct. App. 1987). But "[d]eciding [physical care] is far more complicated than asking children with which parent they want to live." Id. at 101. For the purposes of appeal, we must consider the reasons behind her decision.

And here M.A.K.’s reasoning gives us pause. In large part, her desire to live with Jodie was motivated by a dispute with her older sister, M.E.K.⁵ The record shows M.A.K. "didn't like living at Mark's anymore, because she [was] not getting along with [her sister]." Jodie testified that M.A.K. was upset because M.E.K. "didn't have any rules or expectations." And M.A.K. preferred to live with Jodie "because she enjoyed having her own bedroom at her mother's where at [Mark's] house, she had to share a bedroom with her sister."

It is true, in some cases, the negative influence of one sibling over another may be cause to separate them. See, e.g. , In re Marriage of Jones , 309 N.W.2d 457, 461–62 (Iowa 1981). But that situation is not present here. M.A.K.’s frustration with M.E.K. is typical of teenage siblings. M.A.K. complains M.E.K. "seems to get away with more, [and] do whatever she wants." M.A.K. prefers her own bedroom, away from her sister.

But those reasons do not suggest the sisters need to be separated or that the court should have enshrined what may have otherwise been a temporary dispute. More importantly for Mark, the district court did not provide sound reasons under Iowa Code section 598.41(5)(a) for denying his request for joint physical care of M.A.K.

What's more, we can't ignore the unfortunate consequence of the district court's physical-care decision: it limited the contact between M.A.K. and her younger brother, J.Z.K....