In re the Marriage of Ferris

• Court: Court of Appeals of Iowa
• Decided: November 30, 2020
• Docket: 20-0266
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0266 Filed November 30, 2020

IN RE THE MARRIAGE OF CHRISTI ANN FERRIS AND JOEL DAVID FERRIS

Upon the Petition of CHRISTI ANN FERRIS, Petitioner-Appellee/Cross-Appellant,

And Concerning JOEL DAVID FERRIS, Respondent-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.

Joel Ferris appeals and Christi Ferris cross-appeals the decree dissolving

their marriage. AFFIRMED AS MODIFIED.

Chase Cartee of Cartee Law Firm, P.C., Davenport, for appellant.

M. Leanne Tyler of Tyler & Associates, PC, Bettendorf, for appellee.

Considered by Doyle, P.J., and Mullins and Greer, JJ. 2

MULLINS, Judge.

Joel Ferris appeals and Christi Ferris cross-appeals the decree dissolving

their marriage. Joel argues the district court erred in awarding physical care of the

couple’s children to Christi and that she engaged in parental alienation. On cross-

appeal, Christi takes issue with several aspects of the district court’s property

division and requests appellate attorney fees.

I. Background Facts and Proceedings

Joel and Christi Ferris married in 2003. The couple shares four minor

children. Christi filed for dissolution in May 2017. For the following two years the

couple engaged in a prolonged, repugnant dispute for custody of the children and

division of the couple’s property. Following four days of trial, separated over

several months, a decree was issued on August 9, 2019.1

The district court made significant credibility findings related to Joel’s

testimony. The court took issue with his testimony on the circumstances leading

to his termination from a prior employer. It also found his repeated resistance to

seeking prompt medical care for the children dangerous. The costs associated

with medical care aligned with other testimony on “penny-pinching” practices that

led to a problematic home environment for the entire family. However, the district

court concluded Christi also spent excessive time away from the children and

neglected family responsibilities due to recreational sports. Christi also displayed

1 Trial was held on May 22 and 23, 2018; October 5, 2018; and January 8, 2019. The parties then waited seven months for a decree of dissolution. They each then filed motions pursuant to Iowa Rule of Civil Procedure 1.904(2), which were not resolved until January 2020. Notice of appeal was filed in February 2020. 3

poor judgment “that may have taken some of her time away from the marital home

and children.”

The decree, in relevant part, awarded the parties joint legal custody of the

four children, and designated Christi “as the primary provider of physical care.”

Joel was provided “reasonable and liberal” visitation rights with a schedule. Christi

was awarded her 2015 Nissan, and Joel his 2017 Silverado, each as sole property.

The district court also ordered “that the pensions and deferred compensation

annuities are to be divided as agreed by the parties and in accordance with the

applicable law under a qualified domestic relations order (QDRO) to be drafted by

petitioner’s attorney for signature by the court.” The court specified that order

following motions to amend from both parties pursuant to Iowa Rule of Civil

Procedure 1.904(2). In its fact findings, the district court valued Michigan farmland

owned by the couple and awarded it to Joel.2

Joel appeals and Christi cross-appeals.

II. Standard of Review

We review dissolutions of marriage de novo. In re Marriage of Larsen, 912

N.W.2d 444, 448 (Iowa 2018). “We give weight to the findings of the district court,

especially to the extent credibility determinations are involved.” In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007).

2 The value of the Michigan property is in dispute on appeal. 4

III. Discussion

A. Physical Care

Joel argues the district court erred in awarding physical care of the couples’

four children to Christi. He separately argues that Christi engaged in parental

alienation. Christi argues the district court’s decision was appropriate.

Our supreme court has long held that “no hard and fast rule governs which

parent should have custody. It is not a matter of reward or punishment. The issue

is ultimately decided by determining under the whole record which parent can

minister more effectively to the long-range best interests of the children.” In re

Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974) (quoting In re Marriage of

Bowen, 219 N.W.2d 683, 678–88 (Iowa 1974)). In considering the “long range

best interests of the children,” we consider several factors:

1. The characteristics of each child, including age, maturity, mental and physical health. 2. The emotional, social, moral, material, and educational needs of the child. 3. The characteristics of each parent, including age, character, stability, mental and physical health. 4. The capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the child. 5. The interpersonal relationship between the child and each parent. 6. The interpersonal relationship between the child and its siblings. 7. The effect on the child of continuing or disrupting an existing custodial status. 8. The nature of each proposed environment, including its stability and wholesomeness. 9. The preference of the child, if the child is of sufficient age and maturity. 10. The report and recommendation of the attorney for the child or other independent investigator. 11. Available alternatives. 12. Any other relevant matter the evidence in a particular case may disclose. 5

Id. at 166–67.

Physical care revolves around “the right and responsibility to maintain a

home for the minor child and provide for routine care of the child.” Hansen, 733

N.W.2d at 691–92 (quoting Iowa Code § 598.1(7) (2005)). When shared care is

not feasible “the court must choose a primary caretaker who is solely responsible

for decisions concerning the child’s routine care.” Id. at 692. “The objective of a

physical care determination is to place the children in the environment most likely

to bring them to health, both physically and mentally, and to social maturity.” Id.

at 695. Our review searches for “stability and continuity of caregiving,” considering

a parent’s history of successful caregiving a “strong predictor” of future quality. Id.

at 696–97.

Statutory factors also exist to aid courts in physical care determinations.

See Iowa Code § 598.41(3) (2017). Joel’s parental-alienation argument targets

the court’s consideration of “whether each parent can support the other parent’s

relationship with the child.” Id. § 598.41(3)(e). One parent’s attempt to alienate

children from the other parent may “be given great weight if the evidence

establishes [it] will adversely affect minor children.” In re Marriage of Vrban, 359

N.W.2d 420, 425 (Iowa 1984).

Joel’s arguments begin by focusing on Christi’s alleged mental instability.

He went to great lengths to insist Christi’s presentation of the facts was not based

in reality. Joel testified his reluctance to seek emergency medical care for the

children in several situations came from his belief Christi exaggerated those

situations. He also stated that Christi had a history of relying on him to care for the 6

children while she played recreational sports. Joel argues the oldest child’s

testimony, and preference for Christi’s custody, was rooted in lies Christi told the

children. He argues testimony about excessive time spent in Michigan was false.

Joel finally argues all testimony related to his “penny-pinching” was actually a

mischaracterization of Christi’s conduct targeted to alienate the children from their

father.

The record reveals that Christi did experience a period of extreme stress

that led to hospitalization and mental-health intervention. That stress was directly

related to the dissolution proceedings and an adverse reaction to a prescribed

medication that Christi no longer takes. Since her hospitalization, Christi has

engaged in consistent mental healthcare with positive results. The record shows

Joel’s delayed reactions to the childrens’ medical-health emergencies were

unreasonable. He forced one child with a broken arm to shower and another with

a broken leg to walk around the yard before seeking care. He also administered

medication to one child that exacerbated the child’s symptoms. He also refused

to seek medical care for a severe burn one child received in an accident on a

motorbike. The accident happened while the eight-year-old child was unattended

with Joel on a trip to Michigan. Joel’s conduct in these situations shows his

reluctance to seek medical care may be a danger to the children.

The record also shows that both parents spent time away from the family.

Christi played recreational sports that kept her away from the family at times.

However, it appears her involvement in recreational sports has waned since

dissolution proceedings began. Joel spends a significant period of time in

Michigan. The record shows he spends one to two weekends a month at the family 7

farms, with extended trips for planting, harvest, and family celebrations. The

record shows these trips will continue because Joel was awarded the farmland as

a part of the property distribution and his family resides in Michigan.

The record reveals that Christi did communicate with the oldest child about

Joel’s in-court statements. The child was then angry with Joel. However, that was

not the sole basis for the child’s stated preference of being in Christi’s physical

care. The child discussed Joel’s shortcomings, including his failure to set

schedules and create a calendar for the children, his insistence that the oldest child

provide care to the youngest child, and his failure to prioritize the children’s

activities.

Joel attempted to show Christi manipulated and alienated the children in

order to gain physical care. See In re Marriage of Winnicke, 497 N.W.2d 170, 173–

74 (Iowa Ct. App. 1992). Joel argues Christi’s testimony about his failure to

contribute to the family’s grocery bills and his militant focus on the length of the

children’s showers and the home’s temperature settings was an attempt to force a

wedge into the relationships he shares with the children. The record reveals the

children “were dragged into the controversy” by both parents. See Vrban, 359

N.W.2d at 425. Yet, Christi testified that Joel is a good father and the oldest child

testified Christi appears to have positive relationships with Joel’s extended family.

On our review of the record, we find no evidence that Christi engaged in alienation

that would adversely affect the children. See id.

On our de novo review, we agree with the district court that Christi is the

parent “most likely to bring [the children] to health, both physically and mentally, 8

and to social maturity.” See Hansen, 733 N.W.2d at 695. We therefore affirm the

award of physical care to Christi.

B. Pension Accounts

Christi has an Equistar Retirement Plan and Joel has a John Deere Pension

Plan. Each is a defined-benefit pension plan. The district court awarded each

party their own pension account.3 In retirement, Joel will receive $2062.96 a month

and Christi will receive about $320.00.4 Christi argues the district court should

have divided the pension accounts pursuant to our supreme court’s calculation

presented in In re Marriage of Benson, 515 N.W.2d 252, 255 (Iowa 1996). Joel

argues the pensions were properly divided as a part of the big-picture equitable

division of the parties’ assets.

“Under Iowa law pensions are characterized as marital assets, subject to

division in dissolution actions just as any other property.” Benson, 545 N.W.2d at

255. “A pension plan is ‘a plan established and maintained by an employer

primarily to provide systematically for the payment of [generally ascertainable]

benefits to . . . employees, or their beneficiaries, over a period of years (usually for

life) after retirement.’” Id. at 253 (quoting Black’s Law Dictionary 1135 (6th ed.

1990)). The Benson formula is used to divide pension plans and is a benefit to

both the earning and beneficiary spouses. Id. at 255. It is the preferred method

of distributing a defined-benefit plan. In re Marriage of Brown, 776 N.W.2d 644,

649–50 (Iowa 2009). Notwithstanding Christi’s request for a Benson formula

3 These awards were specified following each party’s motion for reconsideration pursuant to rule 1.904(2). 4 Christi’s account will produce $318.08 per month in her retirement. If she elects

to take it as a life annuity, she will receive $321.26 per month. 9

distribution, the district court did not divide the pension accounts using the Benson

formula, nor did it disclose any consideration of the formula. Furthermore, the

district court made no findings as to the relative value of each pension plan,5

without which there can be no analysis the distribution of the plans was equitable.

We find it equitable to follow the preferred method of distribution via the Benson

formula for the Equistar and John Deere pensions. Thus, we modify the decree to

provide that each party will receive value attributable to premarital contributions to

their respective pension plans, if any, and each will receive one-half the value

attributable to the period of marriage. Counsel for Christi shall promptly prepare a

proposed QDRO for the Equistar pension and counsel for Joel shall prepare a

proposed QDRO for the John Deere pension. Counsel shall exchange proposed

QDRO’s for approval prior to submission to the district court for approval. If

consents cannot be accomplished, applications for approval of the proposed

QDRO’s shall be filed with clerk of the district court. See id.

Christi also requested survivor benefits. “Though spouse survivorship

rights may be awarded to ensure the spouse receives a share of the pension plan

in the event of the employee spouse’s untimely death, such an award is not normal

and typical.” In re Marriage of Freudenberg, No. 17-1569, 2018 WL 6422879, *5

(Iowa Ct. App. Dec. 5, 2018) (altered for readability). The record before us does

not support an award of survivor benefits.

5 No evidence was presented upon which any such finding could have been made. 10

C. Accounts Omitted and Vehicle Debt

Christi argues the district court failed to allocate the funds from two accounts

in the equitable distribution scheme, and asks that both be awarded to her. Christi

also argues the vehicle debt was not assigned. Joel argues the accounts were

distributed pursuant to agreement of the parties.

Christi’s argument focuses on two Fidelity accounts, ending 487 and 059.

Neither account was specifically awarded in the decree. The parties requested

that the accounts be awarded in motions pursuant to rule 1.904(2). The court failed

to do so. Joel’s motion asked the court to include the accounts in its distribution

list, but did not propose a division. On appeal, in a two sentence response, Joel

acknowledges the accounts are small and in Christi’s name; and asserts the

accounts have already been split—a seeming contradiction to his 1.904(2) motion.

On our de novo review, we determine it is equitable to award the two Fidelity

accounts, ending 478 and 059, held in Christi’s name to Christi, and modify the

decree accordingly.

Each party was awarded one vehicle, Christi the Nissan and Joel the

Silverado, “as sole property subject to no claim thereon of” the other spouse. The

cars are also listed in the chart of marital assets and liabilities in the decree. The

court also identified specific marital debts which were to be divided equally; the

vehicles were not listed among those. Interpreting the chart and final list of orders

together, it is clear the district court intended any debt on each vehicle would be

awarded to the party receiving the vehicle, and we so order. 11

D. Michigan Farm Property

Christi argues the value given to the farm property in Michigan was too low

and resulted in inequity. Joel notes that the value given by the court was lower

than the value listed in the appraisal he submitted to the court. He asks that if the

value is modified, it be modified to the value listed in his appraisal.

The district court made the following findings regarding the couple’s

property in Barry County, Michigan. “The Court adopts Joel’s figure for the value

of the parties Michigan farm, $438,300, relying on Petitioner’s exhibits 14, 14A and

141B. The Court also, using those exhibits adopts the mortgage balance of

$122,187. Thus, the Court awards the Michigan farm to Joel with a net value of

$346,113.” A quick review of the math from the foregoing sentence shows that

$438,300.00 minus $122,187.00 would equal $316,113.00. However, Joel’s

appraiser valued the land at $468,300.00, not $438,300.00. It appears the district

court calculation merely includes a scrivener’s error when the decree showed a

value of $438,300.00 instead of $468,300.00. We conclude when the court said it

adopted “Joel’s figure,” it intended to use Joel’s appraiser’s figure which, when

reduced by the mortgage, results in an equity of $346,113.00, which is the net

value the court reached. We find that value is fairly within the range of the evidence

and we decline Christi’s request to change the value assigned to the Michigan farm

property; and likewise her request for fifty percent of any increase in value fails.

E. Appellate Attorney Fees

Christi requests an award of appellate attorney fees due to what she argues

was a windfall in assets awarded to Joel. “An award of appellate attorney fees is

not a matter of right but rests within our discretion.” In re Marriage of Kurtt, 561 12

N.W.2d 385, 389 (Iowa Ct. App. 1997). “We consider the needs of the party

making the request, the ability of the other party to pay, and whether the party

making the request was obligated to defend the decision of the trial court on

appeal.” Id. Given the circumstances of this litigation, including issues raised on

appeal and cross-appeal, we decline to award appellate attorney fees in this

action.

IV. Conclusion

On our de novo review, we affirm the district court’s custody determination.

We modify distribution of Fidelity accounts numbered 478 and 059 and the vehicle

debts. We also modify distribution of the marital assets to provide application of

the Benson formula to the pension plans, and we modify the decree by correcting

the scrivener’s error used in the calculation of the value of the Barry County,

Michigan property. We decline to award appellate attorney fees. Costs on appeal

are assessed equally between the parties.

AFFIRMED AS MODIFIED.