IN THE COURT OF APPEALS OF IOWA
No. 18-0884 Filed March 6, 2019
IN RE THE MARRIAGE OF HEATHER M. MONAT AND BENJAMIN LEE MONAT
Upon the Petition of HEATHER M. MONAT, Petitioner-Appellee,
And Concerning BENJAMIN LEE MONAT, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Linda M.
Fangman, Judge.
Benjamin Monat appeals from the decree dissolving his marriage to Heather
Monat. AFFIRMED AS MODIFIED.
Heather A. Prendergast of Roberts, Stevens & Pendergast, PLLC,
Waterloo, for appellant.
Danni J. Harris of Hope Law Firm, PLC, West Des Moines, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ. 2
McDONALD, Judge.
This case arises out of the dissolution of the marriage of Heather and
Benjamin (Ben) Monat. In this appeal, Ben challenges the district court’s award of
physical care of the children to Heather, the division of the parties’ property, and
the award of spousal support to Heather. Heather requests an award of appellate
attorney fees.
I.
The record reflects the following. The parties married in December 2007.
Prior to the marriage, but after the parties’ engagement, Ben purchased a house
from his grandmother outside Independence, Iowa. Ben and Heather lived in the
house after the marriage and improved it over time.
At the time of the marriage, Heather had just completed her undergraduate
studies and began graduate school, studying speech pathology. Ben worked for
John Deere. Eventually Ben completed a bachelor’s degree and MBA paid for by
John Deere.
The couple’s first years of marriage were marked by moments of contention.
Heather wanted to live in Cedar Falls rather than the Independence area. The
couple disagreed about where Heather should complete her practical experience
requirements for her graduate program. On one occasion, after a sharp
disagreement regarding the issue, Heather tried to drive away from the home. Ben
stopped her. He later characterized his efforts as protective. He stated he carefully
rotated Heather’s legs around and out of the car as she sat in the driver’s seat. He
stated he then stood her up so he could embrace her to calm her down as he would
a child. Heather remembers the event differently. She recalled Ben angrily and 3
forcefully pulled her out of her car as she tried to hold onto her steering wheel.
Following this event, the parties’ parents became involved. Heather’s mother
encouraged her to make the relationship work. Because Heather did not believe
in divorce, she returned to the marital home.
Two children were born into the marriage: G.M. in 2013 and I.M. in 2014.
At the time of G.M.’s birth, Heather worked full-time as a speech pathologist.
However, the parties mutually agreed she should reduce her work schedule
following G.M.’s birth. Around the same time, the couple moved to Cedar Falls at
Heather’s urging; they used the proceeds from the sale of their first home to
purchase their Cedar Falls home. The parties’ relationship did not improve
following the move. Heather kept a personal bag stored at a neighbor’s house
should she need to flee the home. Heather provided most of the care for G.M.,
and Ben continued to excel at work. Following I.M.’s birth, Heather further reduced
her work schedule at the parties’ mutual agreement. They intended Heather would
work only part-time until the children entered elementary school. When Heather
worked, the children attended daycare.
G.M. began having problems with peer interaction at daycare. Heather
became concerned G.M. was mirroring Ben’s behavior. Ben often became
frustrated with G.M. and would yell at him when he did not immediately comply
with instructions. As a result, Heather sought play therapy for G.M. with Ben’s
approval. The play therapist diagnosed G.M. with an adjustment disorder with
anxiety. The therapist also met with Heather and Ben. Through therapy, Ben
became aware that G.M. was more attached to Heather because G.M. was fearful
of him. Ben admitted he yelled at G.M. too much and became frustrated easily 4
with him. Ben worked toward developing new parenting techniques to improve his
relationship with G.M. The therapist’s notes indicate Ben made significant
progress and his relationship with G.M. improved.
The record reflects an alleged incident of child abuse against Ben. In March
2017, Ben was bathing G.M. one evening. Heather remembers that G.M. splashed
around, but she also remembers G.M. crying out that Ben hurt and pinched him.
The following morning, Heather observed several bruises on G.M.’s leg. Heather
photographed the bruises. She packed up the children and took them to her
parent’s home. She and her mother took G.M. to his doctor’s office so that G.M.’s
leg could be examined. Heather recounted her version of the prior night’s events.
As a result, the doctor contacted the Iowa Department of Human Services
(“IDHS”). Ben stated G.M. splashed around and Ben put his hand up to prevent
G.M. from splashing him and directed G.M. to stop splashing. IDHS investigated
and confirmed the incident as abuse but declined to place Ben on the Central
Abuse Registry. Ben then appealed. Heather sought to intervene in the appeal
but was denied. On appeal, IDHS found the incident was not confirmed as abuse
and reiterated that Ben would not be placed on the abuse registry.
Heather sought a temporary restraining order against Ben and filed her
petition for dissolution. Ben was notified and instructed to leave the marital home.
He complied, and the parties mutually agreed to a restraining order that permitted
Heather to remain in the home with the children and limited the parties’ contact to
(1) text or email communication regarding the children, (2) attendance at G.M.’s
therapy, (3) attendance at G.M.’s weekly gymnastics class, and (4) bringing the
children to the other parent’s front door when dropping off the children. The 5
agreement limited Ben’s time with the children to two hours on Monday evenings
and four hours on Saturdays.
By June 2017, the district court entered an order on temporary matters in
the dissolution proceeding. The court found Ben “has always been a very active
participant with the children and their events and has been trusted by [Heather] to
care solely for both children while [she] goes on extended vacations without the
children and [Ben].” The court then awarded the parties joint physical care of the
children. The court permitted Heather to stay in the marital home and required
Ben continue to pay the mortgage and other monthly expenses, including
groceries, utilities, and gas. The court ordered that Ben provide Heather access to
his health spending account to cover the children’s medical expenses. It also
ordered Ben pay Heather monthly child support.
In late August or early September 2017, Ben and Heather had a joint
account to be used for Heather to purchase groceries, but Ben closed the account
after Heather used account funds to purchase two tires for her car. She reasoned
her use of this account was reasonable because she regularly deposited a mileage
reimbursement check from her employer into the account for such expenses. Ben
also removed Heather from a Quik Star gas account and removed her from the
health spending account. In October, Ben had the home’s utilities transferred to
Heather’s name. As a result, Heather was using income from her part-time job to
pay the utilities, the children’s out-of-pocket medical expenses, groceries, gas, and
other living expenses.
In October, Heather sought out another therapist for G.M. Ben resisted and
contacted G.M.’s past therapist for her assistance, detailing his difficulties with 6
Heather. The new therapist eventually treated G.M. and also diagnosed him with
an adjustment disorder with anxiety. The new therapist’s notes do not mention
any aggressive behavior from Ben directed at G.M.
The dissolution proceeding was tried in January 2018 over three days.
During the trial, Ben paid Heather for several months of unpaid child support. Both
Heather and Ben testified. Ten other people also provided testimony. They
include members of both Heather and Ben’s families, their friends, and their former
babysitter (a friend of Ben’s family). The witnesses provided conflicting testimony
about Ben’s parenting skills, past involvement with the children, and temperament.
All generally agreed Heather is a good mother. The court declined Ben’s request
for joint physical care of the children and instead granted Heather physical care of
the children. It evenly divided the parties’ property, ordering Ben to make an
equalization payment to Heather. Finally, the court awarded Heather spousal
support in the amount of $1000 per month until September 2020 so that she may
continue to work part-time until both children are in school as the parties
contemplated prior to separation.
II.
This court reviews dissolution proceedings de novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “Although our review is de novo,
we afford deference to the district court for institutional and pragmatic reasons.”
Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). We will not modify
a dissolution decree unless the district court failed to do equity. See In re Marriage
of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of Graves, No. 13-
1426, 2014 WL 3511879, at *2 (Iowa Ct. App. July 16, 2014). 7
A.
We first address Ben’s challenge to the district court’s physical care
decision. In making the physical care determination, the court considers what
“environment [is] most likely to bring [the children] to health, both physically and
mentally, and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695
(Iowa 2007). When a parent requests joint physical care and the court refuses to
award joint physical care, the court must provide specific justification for its refusal.
See Hensch, 902 N.W.2d at 825. However, this requirement “does not create a
presumption in favor of joint physical care.” Id. (quoting In re Marriage of Fennelly,
737 N.W.2d 97, 101 (Iowa 2007)). When considering whether joint physical care
is in the children’s best interest, the court considers four factors:
(1) “approximation”—what has been the historical care giving arrangement for the child between the two parties; (2) the ability of the [parties] to communicate and show mutual respect; (3) the degree of conflict between the parties; and (4) “the degree to which the parents are in general agreement about their approach to daily matters.”
Id. at 824-25 (quoting In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App.
2007)). The court may also consider any other relevant factors. See In re Marriage
of Determan, No. 10-0732, 2011 WL 444150, at *3 (Iowa Ct. App. Feb. 9, 2011)
(describing the four factors as nonexclusive).
On de novo review, we affirm the district court’s physical care determination.
The parties’ historical caregiving practices show the best interest of the children is
advanced by awarding Heather physical care of the children and granting Ben
liberal visitation. While it is true the temporary order set forth a joint physical care
arrangement, that arrangement deviated from the parties’ historical care-giving 8
arrangement. Upon mutual agreement of the parties, Heather reduced her work
commitments to care for the children. While Ben worked, Heather primarily
focused on the children. Heather took the children to most of their medical
appointments. She also arranged for G.M.’s therapy. Heather has served as the
family’s primary point of contact with the children’s daycare provider. The parties’
temporary arrangement was relatively short-lived when compared to their past
caregiving practices. Approximation thus favors awarding Heather physical care.
See Hansen, 733 N.W.2d at 696-97.
The remaining Hansen factors inveigh against an award of joint physical
care. The parties’ inability to communicate and show mutual respect weighs
against joint physical care. See id. at 698. Text messages between the parties
show they can communicate on some issues but have difficulty communicating
when facing atypical or more significant issues. The level of conflict between Ben
and Heather also weighs against joint physical care. See id. Heather believes
Ben abused her, but Ben disagrees. The abuse, and the parties’ disagreement of
whether there was in fact any abuse, has created significant conflict and animosity
between the parties. Finally, Heather and Ben disagree regarding fundamental
parenting issues, which is at odds with a shared physical care arrangement. See
id. at 699. The therapist’s notes specifically state: “Both parents report that they
have different views on parenting.” This is exemplified in their differing approaches
to correcting the children and their views on where the children should attend
school.
In addition to the four factors provided in Hansen, the court may also
consider any other relevant factor. See Determan, 2011 WL 444150, at *3. Here, 9
we find it significant the parties attempted a joint physical care arrangement
pursuant to the order on temporary matters, and the arrangement did not work well
for the children. The children were often confused and did not know when they
were to go with each parent. G.M. began acting aggressively toward his sister,
friends, and the family dog. I.M. became upset whenever she was forced to leave
her mother or when her mother did something without her.
We affirm the district court’s physical care determination.
B.
Ben argues the district court erred in its division of property in several
respects. First, he argues the court erroneously considered land he owned prior
to the marriage when determining the property distribution. Second, he argues the
court erred in failing to offset equity he accrued in the first family home he bought
prior to the marriage. Third, he argues the court erred in its division of his annual
bonus. Fourth, he argues the court failed to consider the back child support
payments Ben made during trial when dividing the property.
“Iowa is an equitable distribution state.” McDermott, 827 N.W.2d at 678.
“Although an equal division is not required, it is generally recognized that equality
is often most equitable.” In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa
2005). In effort to divide property equitably, the court considers the following
factors:
a. The length of the marriage. b. The property brought to the marriage by each party. c. The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services. d. The age and physical and emotional health of the parties. 10
e. The contribution by one party to the education, training, or increased earning power of the other. f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. .... i. Other economic circumstances of each party . . . . j. The tax consequences to each party. .... m. Other factors the court may determine to be relevant in an individual case.
Iowa Code § 598.21(5) (2017). One party’s greater need for assets may warrant
a larger property award. See Rhinehart, 704 N.W.2d at 684.
Ben argues the court erred in considering certain premarital property when
making the property division. He argues the court should not have considered his
ownership of a parcel of CRP land, which he and his brothers purchased prior to
the marriage, when reaching a property-distribution determination. Ben also
argues the district court should have should have set aside the down payment he
made for the couple’s first home and should have set aside the difference between
the home’s purchase price and its fair market value prior to dividing the marital
property.
We have considered Ben’s arguments with respect to both issues, and we
decline to modify the property division. Ben acknowledges premarital property can
be considered in the property division in dissolution proceedings. See Iowa Code
§ 598.21(5)(b). When considering the factors enumerated in Iowa Code section
598.21(5), it becomes apparent an equal division of the assets, including the
premarital property, is equitable here. While this was not a long marriage, it was 11
not a short marriage either. Both parties contributed to the family’s prosperity. Ben
provided a healthy income from his job and Heather brought in income, kept the
home, and provided extensive child care. Certainly Heather benefitted from the
couple paying off her student-loan debt, but Ben benefitted from Heather’s support
as he attended undergraduate and graduate school during the marriage. Both are
well educated, but Heather’s earning capacity is compromised from her absence
from the fulltime job market at the parties’ mutual agreement. The district court
correctly concluded Ben and Heather should exit the marriage with equal assets.
The court did equity in placing the parties on equal footing upon exiting the marital
relationship. See Fennelly, 737 N.W.2d at 102 (“[I]t is generally recognized that
equality is often most equitable.” (quoting Rhinehart, 704 N.W.2d at 683)).
Ben also contends the district court’s calculations are in error because the
district court failed to make certain offsets related to the division of Ben’s annual
bonus and related to Ben’s payment of past due child support during trial. In
reviewing the district court’s division of property, we conclude the property division
was within the range of evidence and was equitable under the facts presented.
We decline to disturb the district court’s property division.
For these reasons, we affirm the district court’s property division.
C.
We next address Ben’s challenge to the spousal support award. The district
court awarded Heather spousal support in the amount of $1000 per month until
September 2020, when I.M. begins school. The district court did not classify the
spousal support award. Ben cites to Heather’s equal property award and the fact
that she can remain in the marital home until its sale (while Ben pays the mortgage, 12
insurance, and property tax) as reasons negating the need for spousal support.
See Iowa Code § 598.21A(1)(c) (stating the court shall consider the distribution of
property when awarding spousal support). He notes she is able to work fulltime
and currently is not. He also argues Heather does not qualify for any of the
recognized forms of spousal support and could support herself if she chose to go
back to work fulltime.
Spousal support is not a matter of right. The award of spousal support
depends of the circumstances of each case. See In re Marriage of Gust, 858
N.W.2d 402, 408 (Iowa 2015). The three commonly accepted forms of spousal
support are traditional, rehabilitative, and reimbursement. See id. A lesser known
form of spousal support is transitional support. See, e.g., In re Marriage of Hansen,
No. 17-0889, 2018 WL 4922992, at *16 (Iowa Ct. App. Oct. 10, 2018) (McDonald,
J., concurring specially); In re Marriage of Lange, No. 16-1484, 2017 WL 6033733,
at *3 (Iowa Ct. App. Dec. 6, 2017) (“Jessica does not need traditional rehabilitative
support so much as transitional support while finding suitable employment.”).
None of the generally-recognized forms of spousal support are applicable
here. Traditional support is inapplicable here. The marriage here fell well short of
the twenty-year durational threshold. See Gust, 858 N.W.2d at 410-11.
Rehabilitative is also inapplicable because Heather needs no re-education or
training to obtain employment; she already has her graduate degree and sufficient
work experience to reenter the labor market. See In re Marriage of Becker, 756
N.W.2d 822, 826 (Iowa 2008). Reimbursement support does not apply. Although
Ben obtained his degrees over the course of the marriage, he did so at no cost
and did not recently graduate. See id. Transitional support is also inapplicable 13
here. The district court’s award was not intended to assist Heather in overcoming
the economic dislocations associated with dissolution of the marriage. Instead,
the district court awarded support to allow Heather to continue with the parties’
historical care-giving practices until the younger child started school.
Under the circumstances, it was inequitable for the district court to award
spousal support.
We should not be quick to recognize new categories of spousal support. Nor should we be too lax in applying the generally- recognized categories to the facts of a particular case. Among the galaxy of cases, the generally-recognized categories of support are constellations providing guidance in navigating the otherwise uncharted waters of spousal support.
In re Marriage of Baccam, No. 17-1252, 2018 WL 5850224, at *10 (Iowa Ct. App.
Nov. 7, 2018) (McDonald, J., concurring in part and dissenting in part).
[I]f one spouse has a financial need, the next question should not be whether the other spouse has the ability to pay. Instead, the next question should be whether the facts and circumstances of the case are such that it would be equitable to require the other spouse to satisfy the need. The answer to that question is derived from looking at the constellation of principles embodied in the traditionally- recognized forms of spousal support. Only if one or more of the generally-recognized categories is applicable, i.e., only if it would be equitable to require spousal support, should we ask the question of whether the other spouse has the ability to satisfy the recipient spouse’s need. Here, there are no generally-recognized categories of spousal support applicable to the case at hand. There are no extraordinary circumstances justifying the departure from the traditional categories of spousal support. It is not equitable to force one spouse to subsidize a former spouse merely because he or she can. This is particularly true where, as here, the recipient spouse is voluntarily underemployed.
Id. It does not matter that the parties’ mutually agreed upon Heather’s intentional
withdrawal from the workforce while the parties were married. The marital 14
relationship has now been dissolved, and the parties are required to adjust
accordingly.
Accordingly, we strike that portion of the dissolution decree awarding
Heather spousal support. Ben shall receive credit against the property award for
any amounts of spousal support already paid. See, e.g., In re Marriage of Jondle,
No. 10-1892, 2011 WL 4579192, at *5 (Iowa Ct. App. Oct. 5, 2011) (“There is no
support for awarding Regina additional alimony, and the alimony award is stricken.
Ronald is given credit against the property award for any amounts paid as alimony
under the district court's decree.”).
D.
Heather requests appellate attorney fees. Appellate attorney fees are
awarded upon the court’s discretion and are not a matter of right. See In re
Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering whether
to exercise discretion, the court considers “the needs of the party seeking the
award, the ability of the other party to pay, and the relative merits of the appeal.”
McDermott, 827 N.W.2d at 687 (quoting Okland, 699 N.W.2d at 270). We decline
to award Heather appellate attorney fees.
III.
For the foregoing reasons we affirm the decree as modified. We affirm the
dissolution of the parties’ marriage, the award of physical care of the children to
Heather, and the district court’s division of the parties’ property. We strike that
portion of the decree awarding Heather spousal support.
AFFIRMED AS MODIFIED.
Vogel, C.J., concurs; Vaitheswaran, J., dissents. 15
VAITHESWARAN, Judge (dissenting)
I respectfully dissent from the portion of the majority opinion striking the
spousal support award of $1000 per month beginning the first day of the month
following the sale of the home and continuing through September 1, 2020. I
believe the limited spousal support award is justified on the basis of the disparity
in earnings, the parents’ decision to have Heather spend less time in the workforce
while the children were under school age, and Heather’s need for time to
reestablish her earning capacity. See In re Marriage of Becker, 756 N.W.2d 822,
827 (Iowa 2008). While the award may not fit neatly into one of the established
spousal-support categories, the Iowa Supreme Court has not rested on labels.
See id. (“Factually, the support award may be a combination of” two kinds of
support.). I believe the district court acted equitably in awarding Heather spousal
support, and I would affirm that portion as well as all other parts of the thorough
decision.