Opinion
No. 3-190 / 02-1644
Filed July 10, 2003
Appeal from the Iowa District Court for Cerro Gordo County, Jon S. Scoles, Judge.
Wife appeals from the property division and physical care provisions of the decree dissolving the parties' marriage. AFFIRMED.
James Stanton of Stanton Sorensen, Clear Lake, for appellant.
John Lander of Brown, Kinsey Funkhouser, P.L.C., Mason City, for appellee.
Heard by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Angela Piscopo appeals from the decree dissolving her marriage to Richard Piscopo. She contends she should have been awarded physical care of the couple's two children, that certain gifted property should have been awarded to her separate and apart from the property division, and that the property division was otherwise inequitable. We affirm.
Background Facts and Proceedings . Richard and Angela Piscopo were married in August 1995, in California. At the time Angela was working as a full-time registered nurse in a San Diego hospital. Shortly after the marriage Richard, a law school graduate, obtained full-time employment with a local firm. In September 1996 the couple's first child, Anthony, was born. Their second child, Nicholas, was born in December 1997.
The couple shared responsibility for the children's care, according to their schedules. Although Angela worked only part-time after Nicholas's birth, she often worked long or evening shifts. Richard also worked into the evenings, and traveled. However, in 1998 Richard began to cut back his schedule, and started working from home on Fridays. This led, in large part, to the termination of his employment in February 1999. The law firm's managing partner stated that Richard was a good attorney, but had been unable to keep up with his work load because he was "distracted" by family life. Richard found some contract work, but was unable to locate full-time employment in California.
In September 1999 the family moved to Clear Lake, Iowa, near Angela's family. They sold their California home, which they had been able to purchase thanks to a $15,000 gift from Angela's father. Proceeds from the sale of the home were used for several purposes, including hiring an executive recruiter for Richard, and placing a down payment on a new home in Clear Lake. Angela immediately began full-time work at a local hospital, but dropped to a part-time schedule after six weeks. Richard did not obtain employment until March 2000, when he was hired as a full-time staff attorney at Corporate Farmer.
The parties' relationship, which had been somewhat rocky in California, deteriorated seriously after the move to Iowa. Angela often absented herself from the home. Richard began to suspect Angela was having an affair. As a result, he engaged in inappropriate behavior on several occasions. In one instance he locked all the doors and nailed a side garage door shut to prevent Angela from reentering the house. Richard began counseling in January 2002, in an effort to address his anxiety and jealousy.
In March 2002, Angela filed a petition for dissolution of the marriage. She moved out of the marital residence into a two-bedroom apartment in June 2002. The parties continued to share care of the children until the September 2002 dissolution hearing. During that time the boys spent approximately fifteen days with Angela.
This information comes from a calendar kept by Richard. While Angela attacks the calendar as self-serving, she does not dispute its accuracy.
At the time of the hearing Richard was thirty-seven years old and earning $60,000 per year at Corporate Farmer. Angela was thirty-three years old and earning $34,500 per year from her part-time position at the local hospital. The parties agreed to share legal custody of six-year-old Anthony and four-year-old Nicholas, but each sought physical care. The court awarded physical care to Richard, and made appropriate child support orders. Excluding Richard's law school debt, for which he was assigned sole responsibility, division of the parties' limited property was roughly equal. The court declined to consider the $15,000 gift from Angela's father in the division, finding it had been made to the couple, and had been spent or lost its character. Angela appeals.
Each party received a vehicle of comparable value, and their own clothing, jewelry and other personal effects. Each was awarded her or his own small retirement account. Although Angela's account was slightly larger than Richard's, it appeared at least a portion of her account had accrued prior to the marriage. All other personal property and household goods were to be divided by agreement of the parties. Richard was awarded the heavily-encumbered martial residence, but ordered to make an equalization payment to Angela for one half of the home's $9,323 net value.
Scope of Review . Our review of this equitable proceeding is de novo. Iowa R.App.P. 6.4. We give weight to the district court's findings of fact, but we are not bound by them. Iowa R.App.P. 6.14(6)( g).
Physical Care . Physical care determinations are made by considering a number of factors, including the children's characteristics and needs and the parents' abilities to meet those needs. See Iowa Code § 598.41(3) (2001); In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). As the district court noted, Angela and Richard are both capable and loving parents, and each is able to meet their children's needs. The critical question is which of these two good parents can do the better job in raising the children, and more effectively minister to their long-range best interests. In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct.App. 1998). The objective is always to place the children in the environment most likely to bring them to "healthy physical, mental, and social maturity." In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999).
This is an undeniably close case. Both Angela and Richard have been actively involved in their children's lives. With the possible exception of the children's infancies, it does not appear that either parent should be classified as the primary caregiver. However, Richard has made a particular effort to be a motivated and engaged parent. As noted by the district court, it is Richard who has"demonstrated a commitment over a long period of time to make the children a priority in his life." In addition, Richard's work schedule is more amenable to caring for school-aged boys.
Richard works a flexible, forty-hour-per-week, Monday through Friday schedule. While Angela also works during the day, she is subject to twelve-hour, weekend, and occasional evening and overnight shifts.
Angela notes that the boys would benefit from contact with her close, local extended family. It is certainly in the children's best interests to retain their ties with Angela's family here in the Iowa. There is no indication, however, that Richard intends to remove the boys from Iowa, or that he will fail to facilitate a relationship between the children and their maternal relatives.
Angela places great emphasis on Richard's temper. However, the record falls far short of substantiating the atmosphere of domestic abuse that Angela implies existed throughout the marriage. Moreover, we agree with the district court's conclusion that, based on the preponderance of credible evidence, Richard has not directed his anger toward the children or engaged in inappropriate discipline. We also find it significant that Richard recognized his frustration and jealousy, and not only sought out but continued with counseling. Richard's therapist believed counseling had helped Richard cope with his anxieties and recognize his own role in the martial breakdown. She also stated the focus of the therapy had shifted to helping the children cope with the divorce, and providing them a stable environment.
This is a case involving two good parents. Upon review of the record, and considering all relevant facts and circumstances, we conclude Richard can better foster the children's physical, mental, and social maturity. We therefore affirm the district court's physical care award. Gifted Property. The parties agree the $15,000 gift from Angela's father was intended as a down payment on Richard and Angela's first home. Because the mortgage company required an assurance that the $15,000 was a gift, and not a loan, the gift was memorialized in a letter, signed by Angela's father and naming Angela as the recipient. Relying on that letter, Angela contends it was an individual gift, made to her alone.
In her brief Angela argues that the court should have, at a minimum, awarded joint or shared physical care. It does not appear that this issue was presented to the district court, and it should not be addressed for the first time on appeal. See In re Marriage of Okonkwo, 525 N.W.2d 870, 872 (Iowa Ct.App. 1994).
To determine whether the $15,000 constituted a joint or individual gift, we look to both the donor's intent, and the circumstances surrounding the gift. In re Marriage of Wertz, 492 N.W.2d 711, 714 (Iowa Ct.App. 1992). Angela argues intent was clearly and irrefutably established in the gift letter, because only she was listed as a recipient. However, Angela's father testified, on two occasions, that the money was intended for both parties. The district court found this testimony to be credible, and a better indication of intent than the face of the letter. We give considerable weight to the court's assessment, particularly as the letter was only executed as an assurance to the mortgage company.
Angela has not shown that the gift was made to her alone. Cf. In re Marriage of Athy, 428 N.W.2d 310, 313 (Iowa Ct.App. 1988) (finding it inequitable to set aside gift where husband failed to prove his mother's intent that the gift was to him alone). Even if the $15,000 had been an individual gift to Angela, it would have been inequitable to exclude it from the property division, given the limited extent of the parties' assets, and the manner in which the gifted funds were used. See Iowa Code § 598.21(2); In re Marriage of Liebich, 547 N.W.2d 844, 850 (Iowa Ct.App. 1996). We find no error in the district court's refusal to set aside to Angela $15,000 over and above the property division.
Property Division . An equitable division of property must be made according to the criteria set forth in Iowa Code section 598.21(1). Here, after assigning Richard his premarital law school debt, the district court made a roughly equal division of the property acquired during the parties' seven year marriage. See In re Marriage of Van Regenmorter, 587 N.W.2d 493, 496 (Iowa Ct.App. 1998) (noting assets and debts acquired during marriage are often "nearly equally divided"). Angela argues such a division was inappropriate, because her financial contributions were substantially superior to Richard's both before and during the marriage. We cannot agree.
Angela, who had already established her nursing career, entered the marriage with a vehicle, $10,000 in savings, and some household goods. Richard, who had passed the California bar only a few months prior to the marriage, had essentially no property. While there was a disparity in premarital assets, this disparity was not so substantial as to constitute a major or overriding consideration in the property division. Cf. In re Marriage of Hass, 538 N.W.2d 889, 892 (Iowa Ct.App. 1995) (noting that, where there is awide disparity in premarital assets, and a marriage of short duration, one spouse has only a minimal claim on premarital property of the other).
To support her claim that she made greater financial contributions during the marriage, Angela relies heavily on the fact that Richard was unemployed for a little more than a year. However, other than that year, and a brief period at the beginning of the marriage, Richard maintained full-time employment. In contrast Angela, who was forced to take approximately eight months off of work when pregnant with Nicholas, has worked primarily part-time since his birth. Moreover, based on the record, it appears that when the parties were regularly employed, Richard's salary was higher than Angela's.
The record does not establish Angela's superior financial contributions to the marriage. Considering the remaining relevant statutory factors in light of the particular facts and circumstances of this case, we find the property division to be equitable. We therefore affirm the court's property awards.