2013 Family Law Seminar

2013 Family Law SeminarOctober 24 - 25

West Des Moines Marriott1250 Jordan Creek Pkwy.

West Des Moines, Iowa 50266

CLE Credit Information15 state hours which includes 1.75 federal hours

and 1 ethics hour

Activity ID#118183

Look for more ISBA CLE opportunities at www.iowabar.org

Caveat

The printed materials contained in this bookand the oral presentations of the speakers arenot intended to be a definitive analysis of the

subjects discussed. The reader is cautioned that neither the program participants nor The IowaState Bar Association intends that reliance beplaced upon these materials in advising your

clients without confirming independent research.

Marital Dissolution Services Business Valuations

Tax Alternatives (Ramifications)/Settlement Projections

Analysis of Pre-Marital/Marital Assets and Liabilities

Analysis of Privately-Owned Business for Identification of Owner Perks

Value of Retirement Benefits "Earned" During Marriage

Reimbursement Alimony Calculations

Real Estate Appraisals

We would be happy to assist you with your clients’ valuation and litigation support needs. Call us today!

BCC Advisers is an independent financial and management advisory firm specializing in business valuations, litigation support, merger & acquisition

consulting, corporate finance and real estate appraisal services

1707 High Street Des Moines, IA 50309 (515) 282-8019 [email protected] www.bccadvisers.com

2009 BBB Integrity Award Winner BBB of Greater Iowa

Gregory L. Weber CPA/ABV, ASA

James D. Nalley CPA/ABV, CFF, CVA

Alan D. Ryerson CPA/ABV, CFF, ASA

BCC Advisers

Over 1,400 appraisals completed.

Over 600 litigated matters supported.

Over 100 business transfer assignments assisted.

Seven professional analysts dedicated to BV/LS.

More than 100 years of financial and management experience.

BCC Advisers

Iowa’s Largest Independent M&A and Valuation Adviser

Litigation Support

Marital Dissolution

Financial Modeling

Evaluation of Other Expert Reports

Forensic Accounting Procedures

Business/Personal Economic Loss

Business Valuation

Business Transfer

ESOP/Qualified Plans

Estate & Family Transfers

Fairness Opinions

Shareholder Transactions

Charitable Giving

Merger & Acquisition

Sale of Business

Purchase of Business

Capital Raising

Real Estate Appraisal

Commercial

Agricultural

Residential

Special Purpose

1707 High Street ▪ Des Moines, IA 50309 ▪ (515) 282-8019 www.bccadvisers.com ▪ [email protected]

ISBA members - receive all of your CLE credits by using The Iowa State Bar Association’s affordable CLE Season Pass. It’s the one and only pass that offers hundreds of CLE credits at the best price in town! For only $550, you can take all the CLE credits you need in a 12-month span.

The ISBA’s quality CLE programs are presented with your convenience in mind, offering a variety of start times, formats, and program lengths to provide the flexibility you need. Sign up for the season pass today and have the opportunity to choose from over 200 hours of live CLEs in addition to the 30 hours of telephone and live webinar events the ISBA offers.

WHO CAN USE THE PASS?The CLE Season Pass is for ISBA members only. The pass cannot be used by anyone other than to whom the pass is issued. PASS TERM:Under no circumstances will the term on any pass be extended beyond the 12-month period you selected for it to begin.FREE ADMISSION GUARANTEE:The pass guarantees the pass-holder free admission to ISBA CLE seminars presented in Iowa during the term of the pass (co-sponsored events are not included). AMENITIES & COURSE MATERIAL:The pass holder is entitled, at no further cost, to all ISBA seminar materials. COURSES NOT COVERED BY THE PASS:The ISBA CLE Season Pass does not provide free admission to recorded web-based CLEs, any ISBA golf-outing, co-sponsored events, or the Family Law Seminar Ethics Dinner Theater.

ISBA CLE Season Pass Order Form

Name : _________________________________________________ Member # ________ Phone # _______________________________

Address: _______________________________________________ City, State, Zip: ____________________________________________

E-mail: ________________________________________________

Season Pass Cost: $550Method of Payment: ___ Check enclosed Check Number ____________ ___ Master Card ___ Visa ___ American Express

Credit Card #:______________________________________________________________ Exp. Date: ________________

Cardholder Signature: ____________________________________________________

Start-up Date: _______ /_______ /____________ (when you would like the pass to begin) Return Registration Form to: ISBA CLE, 625 East Court Avenue, Des Moines, Iowa 50309 or fax (515) 243-2511. For questions: phone (515) 697-7874 or email [email protected] For questions: phone (515) 697-7874 or email [email protected]

You may also order your CLE Season Pass online at www.iowabar.org/cleseasonpass

Become a fan of the ISBA Facebook page!

f a c e b o o k . c o m / i o w a b a r

Find-A-Lawyer

www.iowafindalawyer.com

Looking to expand your client base? Expand your practice with clients from the State Bar’s Find-A-Lawyer Program. The program helps connect lawyers with the public through targeted referrals. Participating lawyers indicate in which areas of law they can help clients, and in which counties. The program also allows lawyers to find new clients at a low cost while improving the image of lawyers and the legal profession.

The annual fee is $100 for the first lawyer in a firm and $20 for each additional lawyer in the same law firm.

F E AT U R E S I N C L U D E :Civil/Criminal Jury InstructionsIowa Case Law Prior to 1949Iowa Code Annotated

w w w . i o w a b a r . o r g / f a s t c a s e

Iowa Title StandardsWorkers’ Compensation Decisions

CheCk out

www.iowabar.orgfor

• Member Benefits

• Podcasts

• Brochures

• Practice Manuals

• IowaDocs

• Civil/Criminal Jury Instructions

• ISBA’s Find-A-Lawyer Program

• Iowa Lawyer Magazine

• Bar Reports

• Section/Committee Newsletters

• News Releases

• Upcoming CLEs

• ISBA’s Facebook Page

• Updating Your Records

The Iowa State Bar Association’s Iowa Lawyer Magazine app for iPhone and iPad is now available through iTunes. The app contains the same feature articles on the law, reviews of legal developments, interviews with well known leaders in the legal community, legislative updates, views from the bench, history of the bar, profiles, CLE schedules and announcements and reviews of ISBA Programs & Events that you receive in the Iowa Lawyer Magazine hard copy. Now all that great information can be found in the palm of your hand wherever you go at no cost. Simply search for “Iowa Lawyer” in iTunes or visit www.iowabar.org/iowalawyer to download the free app.

Download the free Iowa Lawyer Magazine app

BOUTIQUE ADVISORY FIRM WITH A NATIONAL REACH

Offering business appraisal, financial advisory, litigation support and related professional services

to clients across the United States

Combined, our team represents approximately 30 professionals and over 100 years of experience

Call one of our professionals in Des Moines:

Duane

Tolander CPA/ABV,

CVA

Chad

Hoekstra CPA/ABV, ASA, CFF

Greg

Patterson ASA

Brian Crotty

ASA, CBA, CFE, MBA

HDH ADVISORS LLC Business Appraisal | Litigation Support | Financial Advisory | Consulting

www.hdhadvisorsllc.com

ATLANTA | 2002 Summit Boulevard, Suite 950, Atlanta, Georgia 30319 | 770.790.5000 DES MOINES | 1601 22nd Street, Suite 305, West Des Moines, Iowa 50266 | 515.225.3796

MINNEAPOLIS | 100 South 5th Street, Suite 1932, Minneapolis, Minnesota 55402 | 612.254.9574

The Bar Headquarters is the home of the lawyers and judges of Iowa. It is their professional gathering place. As such, it is dedicated to serve all members of the ISBA and the public through the administration of justice in the highest traditions of the legal profession. All Iowa state bar members are welcome to enjoy their new home today and for many decades to come.

The Bar Headquarters, which was built as a railroad freight depot in 1902, is located at 625 East Court Avenue in downtown Des Moines, Iowa. It is two blocks from the State Capitol and the Iowa Judicial Branch Building.

Members may reserve any of the bar conference rooms on a first-come, first-served basis. Rooms are free of charge for law-related meetings. Conference Center hours are 8:00 a.m. to 4:30 p.m.The first floor is home to the Bar Center’s Lawyer’s Library, the Lawyer’s Lounge, one private office, and two conference rooms equipped with flat screen televisions, phones, and laptop connections.

The Lawyer’s Lounge provides a warm and welcoming environment for attorneys who may be downtown and need a place to relax between meetings. Such visitors may help themselves to a fresh cup of coffee, enjoy the daily newspaper, or check phone or e-mail messages. Wireless access is available throughout the entire building at no charge.

The second floor houses the CLE Center featuring laptop connections, a DVD/CD player, built-in screen, and LCD projector. The CLE Center can hold up to 80 people in a classroom set-up and is perfect for seminars, committee/section meetings, and special events. Plus plenty of free parking for all!

For more information or to request one of our meeting spaces, please contact Lisa Hanson at (515) 697-7876 or [email protected]

ISBA HEADQUARTERS

BOUTIQUE ADVISORY FIRM WITH A NATIONAL REACH

Offering business appraisal, financial advisory, litigation support and related professional services

to clients across the United States

Combined, our team represents approximately 30 professionals and over 100 years of experience

Call one of our professionals in Des Moines:

Duane

Tolander CPA/ABV,

CVA

Chad

Hoekstra CPA/ABV, ASA, CFF

Greg

Patterson ASA

Brian Crotty

ASA, CBA, CFE, MBA

HDH ADVISORS LLC Business Appraisal | Litigation Support | Financial Advisory | Consulting

www.hdhadvisorsllc.com

ATLANTA | 2002 Summit Boulevard, Suite 950, Atlanta, Georgia 30319 | 770.790.5000 DES MOINES | 1601 22nd Street, Suite 305, West Des Moines, Iowa 50266 | 515.225.3796

MINNEAPOLIS | 100 South 5th Street, Suite 1932, Minneapolis, Minnesota 55402 | 612.254.9574

SCHEDULE - THURSDAY, OCTOBER 247:30 - 8:00 AM – Registration

8:00 - 9:15 - Shared Care-To Presume or Not To Presume? That is the Question.Speakers: Maria Cognetti, President-Elect of the American Academy of Matrimonial Lawyers and Stacey Warren, Babich Goldman, PC.

9:15 - 10:15 - New Ways for Families: A New Method for Managing High Conflict ClientsSpeaker: Bill Eddy, High Conflict Institute

10:15 -10:30 – Break

10:30 - Noon - New Ways for Families: Self-Management Skills Lawyers Can Teach ClientsSpeaker: Bill Eddy, High Conflict Institute

Noon - 1:00 - Lunch (provided with registration)

1:00 - 2:15 - Protecting Clients, Children, Families, Lawyers and Staff from Violence, Kidnapping, and StalkingSpeakers: Bill Eddy,High Conflict Institute; Tom Langlas, Gallagher Langlas & Gallagher PC; Laura Roan, Attorney General’s Office, and Sgt. Robert Greenlee, Waterloo Police Department

2:15 - 3:15 - Lawyer and Client Preparation to Make Mediation WorkSpeakers: Bill Eddy, High Conflict Institute; Lora Mccollom, McCollom Law Firm PLLC; and Chad Kepros, Bray & Klockau PLC

3:15 - 3:30 – Break

3:30 - 4:15 - Business Valuation: What is Hiding Behind the Curtain-Tips to Guide You Through Haunted ForestSpeakers: Alan Ryerson and/or James Nalley, BCC Advisers

4:15 - 5:00 - Back to Basics: Discovery – Draft and Respond EffectivelySpeaker: David Jungmann

5:00 - Chair’s Reception (sponsored by BCC Advisers) - Join us for complimentary drinks and snacks, greet old friends, make new acquaintances, meet our speakers, discuss the day's events and tomorrow's topics.

6:30 - Dine-AroundsWith tables reserved at some of the best eateries in Des Moines and West Des Moines, this fun "Dutch treat" event is an excellent opportunity to enjoy dinner at an excellent restaurant while networking with old friends and other conference attendees. Sign up at the registration desk.

2014 Family Law Seminar2014 Family Law Seminar

SCHEDULE - Friday, OCTOBER 257:30 - 8:00 AM – Registration

8:00 - 9:00 – Family Law UpdateSpeaker: Jim Meade, Meade Law Firm

9:00 - 10:00 – Dividing Retirement Benefits: Drafting Settlement Agreements & QDROS that You and The Plan Administrator Won't RegretSpeaker: Wendy Drefahl, WFA Econometrics

10:00 -10:15 – Break

10:15 – 11:00 – Disestablishment of PaternitySpeaker: Sharon Mellon, Mellon & Spies and Joe Pavelich, Mellon & Spies

11:00 – 12:00 – The Dream & Reality: Expectations Placed on Those Who Represent Children in Family CourtSpeakers: District Court Judge Eliza Ovrom, Jenny Schulz, Kids First Law Center; Barbara Davis; and Ellen Ramsey-Kacena

Noon - 1:00 - Lunch (provided with registration)

1:00 - 2:00 – Dealing with Special Needs Clients and Dependents in Family Law CasesSpeakers: Diane Dornburg, Carney & Appleby, PLC; Amy Botkin, Vocational Resources Plus LLC; Dennis Burns, Connect the Dots 4 Life; and Polk County Probate Judge Craig Block

2:00 - 3:00 -Lawyers' Mental Health and Depression IssuesSpeaker: Hugh Grady, Lawyer Assistance Program Director

3:00 - 3:15 – Break

3:15 - 4:00 – Unraveling the Mysteries of Social Security Which Family Lawyers Need to KnowSpeakers: Joe Basque and Elizabeth Norris, Iowa Legal Aid

4:00 - 5:00 – Appellate Advocacy: How to Win on AppealSpeaker: Andrew Howie, Hudson Mallaney Shindler & Anderson PC


Thursday Oct. 24

New Ways for Families

8:00 a.m.-12:00 p.m.

Presented byBill Eddy

High Conflict Institute625 Broadway, Suite 1221

San Diego, CA 92101Phone: 619-221-9108


Thursday, October 24, 2013Thursday, October 24, 2013

10/24/2013

1

A NEW METHOD FOR MANAGING HIGH CONFLICT CLIENTS

Iowa Bar – Family Law Seminar

Oct 24, 2013

Bill Eddy, LCSW, Esq.Attorney, Mediator, Therapist, Author

Copyright © 2013 High Conflict Institutewww.HighConflictInstitute.com

Issues with Potentially High Conflict Parties

Lots of all‐or‐nothing thinking

Frequent unmanaged emotions

Extreme behaviors (in and out of mediation)

Preoccupation with blaming others

Easily stuck in defensiveness

2 Types of Conflict Resolution

• Logical Problem‐Solving

• Slower; takes time to analyze problems

• Flexible thinking (many solutions to every problem)

• Managed emotions

• Moderate behaviors (so can maintain relationship)

Defensive Reacting• Fast; shuts down higher

thinking & problem‐solving to focus on quick action

• All‐or‐nothing thinking (eliminate or escape the enemy)

• Intense emotions drive fight or flight behavior

• Extreme behaviors (to defend self from life or death dangers or perceived life or death dangers)

www.HighConflictInstitute.com (c) 2013 William A. Eddy

10/24/2013

2

New Ways for Families

• A New Method in San Diego Courts starting in 2009.• Now in two court systems in Alberta, Canada since 2011.• Now in Austin, Texas area as of Summer 2013• Up to individual judges to order it, or parties to agree to

use it.• Designed for high conflict families and high

conflict issues, including D.V., Child Abuse & Alienation• Triggered when one parent requests restricted parenting

time for the other party.• A short‐term program of front‐end skills training before

the big decisions are made.• A gateway to accepting further treatment for those in

need.

StructureSkills Before Decisions

Four Steps, 6 ‐16 weeks:

• Step 1: Getting Started (Structure & Motivation)

• Step 2: Individual Counselling (Focus on Skills)

• Step 3: Parent‐Child Counselling (Teach Skills)

• Step 4: Family (or Court) Decision‐Making

Step 1: Getting Started

A. Court Order:

Triggered by legal dispute over the parenting plan, etc.

Judge’s order – or approved stipulation – with deadlines.

Court can also make temporary orders:

TRO, restricted parenting plan, support, etc.

Motivational Comments from Bench: positive & negative

B. Behavioral Declarations

Just for counselors to know briefly about case

[Show Step 1 Video]


10/24/2013

3

Step 2: (Cont’d)Individual Counseling

There are 6 sessions with Parent Workbook

Focus is on learning/strengthening 4 skills:

1. Flexible thinking

2. Managed emotions

3. Moderate behaviors

4. Checking yourself

Counselors focus on working with resistance

to positive change;

Lawyers will prepare client and reinforce use of skills

Step 2: (Cont’d)Individual Counseling

Specific skills within each big skill:


Making proposals (2 or more); responding well

2. Managed emotions

Encouraging self statements; protecting kids

3. Moderate behaviours

BIFF Responses to emails:

Brief, Informative, Friendly and Firm

See POSTER

[Show Interim Hearing]


10/24/2013

4

Step 3:Parent‐Child Counseling

• Parents share this counselor

• Each parent has 3 separate meetings with child/ren and counselor, using a workbook

• The meetings alternate weeks with each parent, so neither gets ahead of the other

Session #1: Parent teaches child 3 skills

Session #2: Parent hears child’s concerns

Session #3: Parent(s) discuss new ways family organized & supporting other parent

Step 3: (cont’d)Parent‐Child Counseling

• This counselor is not confidential

• This counselor does not write a report or make recommendations, but can testify in court about observations

• This counselor is not a court expert, so that he or she does not form an expert opinion and can only testify and talk to other professionals

Step 4: Family (or Court) Decision‐Making

• After the counseling, if the parents have not spontaneously made all of their decisions, they may do so now regarding ongoing parenting schedule, decision‐making and communication systems, with help of professionals (lawyers, court mediator, private mediator, collaborative team, etc.)

• If they are unable to make these decisions on their own, then they proceed to court

[Show Fam Lawyer reinforcing skills w client]


10/24/2013

5

Step 4: Court Decision‐Making

1. Before hearing testimony and argument, the court asks the parents what they have learned in New Ways for Families

2. The court quizzes them with hypothetical scenarios similar to behavioural Declarations

3. If requested, court will hear testimony of Parent‐Child Counselor solely about observations

4. Then court gives tentative opinion and encourages settlement in the hallway.

5. If no settlement, then proceed to hear case.

Research Basis forNew Ways for Families

1) Dialectical Behavior Therapy for Borderline Personality Disorder (BPD)

2) Parent‐Child Interaction Therapy (PCIT)

3) Child Inclusive Mediation (CIM)

Paradigm Shifts of New Ways

• Skills before decisions

• Both parents expected to work on themselves

• Parents to teach children and to hear children (rather than professionals doing this)

• Professionals primary role is to teach skills and overcome resistance; use positive feedback

• Focus is on teaching small skills in small steps

• Guide parents to use skills to maximum ability


10/24/2013

6

New Ways Designed for Domestic Violence Cases

• No joint meetings, except by mutualagreement after 5 individual sessions

• Both parents participate in New Ways, including Individual & Parent‐Child mtgs.

• Can occur at start of case, to reduce tension and contain behaviour from the start

• Shifts focus to learning skills and future behaviour, away from defensiveness

• New Ways as “gateway” to future treatment

New Ways Designed for Child Abuse Cases

• Similar to handling domestic violence:

Educate about and encourage treatment

New Ways as “gateway” to further treatment

• Encourage Use of three skills:

– Flexible Thinking

– Managed Emotions

– Moderate Behaviours

– “Checking Oneself” to see if using skills regularly

New Ways Designed for Alienation Cases

• BOTH parents must attend and practice skills

• Emphasis is on teaching skills, not decisions

• Workbook writing exercises require:

– Shifting away from all‐or‐nothing positions

– Managing emotional contagion

– Positive statements about other parent to child

– Ways each parent will support other parent

• 3 Parent‐child sessions with each parent

• Court follow‐up (if necessary)


10/24/2013

7

Materials

• Professional Guidebook: Explains process and basis for New Ways program

• Parent Workbook: Structures Parent Counseling with lessons that both parents learn. Structures Parent‐Child Counseling sessions. Court and all professionals know what is being addressed.

• Intro DVD: Designed for professionals, but may be seen by parents and may help motivate parents

• Poster: Shows all skills at a glance on the wall

www.NewWays4Families.com

4 Models Now

1. Court‐based Counseling

(6 Indiv sessions; 3 Parent‐Child sessions each)

2. Collaborative Divorce

(3 Indiv coaching sessions; 3 Parent‐Child meetings)

3. Decisions Skills Class (3 Classes of 60‐90 min. each)

4. Pre‐Mediation Coaching (1‐2 sessions with a lawyer, counselor, mediator or other professional)

All 4 Models Teach Skills

Focus is on learning/strengthening 4 “big” skills:


2. Managed emotions

3. Moderate behaviors

4. Checking Yourself (not your partner)

Goal is to practice these skills

Each model has a different Workbook


10/24/2013

8

Lawyers Teaching Skills

Client Responsibility for Using Skills:Choosing Behavior and Making Decisions

High Conflict clients pressure professionals to become responsible for solving their problems

Keep responsibility for decision‐making on the clients

“Your job will be making proposals and decisions.”

Avoid getting emotionally hooked; don’t feel responsible for fixing clients or solving their problems – just do your standard of care

Each irresolvable problem they desperately give you is “another dilemma” for them to resolve or manage

Managed Emotions

• Clients are anxious about everything (big decisions, confusing procedures, other party)

• Encourage staying calm, being patient

(avoids slipping into defensiveness;

“helps you have clearer thinking”)

• Teach having a phrase to help self stay calm

(“The final settlement is all that matters.”

“I don’t have to defend myself.” “I’m okay.”)


10/24/2013

9

Flexible Thinking

Teach making proposals (4 steps):

1. Propose WHO do WHAT, WHERE & WHEN2. Ask questions and provide information

about proposals

3. Respond with:

“YES,” “NO,” or “I’LL THINK ABOUT IT”

4. If you say NO, then make a new proposal.

Discuss benefit of having 2 proposals ready for each possible issue that will be discussed.

Managed Emotions

Teach writing BIFF Responses to hostile emails:

• BRIEF

• INFORMATIVE

• FRIENDLY

• FIRM

B.I.F.F Responses

Brief: Keep it brief. Long explanations and arguments trigger upsets for HCPs.

Informative: Focus on straight information, not arguments, reactions, emotions or defending yourself (you don’t need to)

Friendly: A friendly greeting (“Thanks for responding to my request…”). Some positive statement within BIFF Response

Firm: Gently repeat information and close the door to further argument; or give 2 choices


10/24/2013

10

Coaching for BIFF Responses: 10 Questions

1. Is it Brief?

2. Is it Informative?

3. Is it Friendly?

4. Is it Firm?

5. Does it contain any Advice?

6. Does it contain any Admonishments?

7. Does it contain any Apologies?

8. How do you think the other person will respond?

9. Is there anything you would take out, add or change?

10. Would you like to hear my thoughts about it?

Starting a New Ways Program• Obtain Guidebooks, Workbooks and Intro DVD

• Organize 2‐day training with High Conflict Institute

• Invite Judiciary to participate & order New Ways cases

• Announce training to all professionals re New Ways

• Training with all professionals together

• After training, publish lists of Counselors and Lawyers

• Adapt New Ways forms for local jurisdiction

• Promote New Ways to general community

• Use in Court, Collaborative, Mediation and P. C. cases

• On‐going consultation with High Conflict Institute

Thanks for your interest!

Contact us at:

www.NewWays4Families.comOr

www.HighConflictInstitute.com


Responding to Hostile Mail (B.I.F.F.)

By Bill Eddy, LCSW, Esq.

© 2007 by High Conflict Institute

Hostile mail – especially email – has become much more common over the past decade. Most of this mail is just “venting,” and has little real significance. However, when people are involved in a formal conflict (a divorce, a workplace grievance, a homeowners’ association complaint, etc.) there may be more frequent hostile mail. There may be more people involved and it may be exposed to others or in court. Therefore, how you respond to hostile mail may impact your relationships or the outcome of a case. Do you need to respond?

Much of hostile mail does not need a response. Letters from (ex-) spouses, angry neighbors, irritating co-workers, or attorneys do not usually have legal significance. The letter itself has no power, unless you give it power. Often, it is emotional venting aimed at relieving the writer’s anxiety. If you respond with similar emotions and hostility, you will simply escalate things without satisfaction, and just get a new piece of hostile mail back. In most cases, you are better off not responding. However, some letters and emails develop power when copies are filed in a court or complaint process – or simply get sent to other people. In these cases, it may be important to respond to inaccurate statements with accurate statements of fact. If you need to respond, I recommend a B.I.F.F. response: Be Brief, Informative, Friendly and Firm.

BRIEF

Keep your response brief. This will reduce the chances of a prolonged and angry back and forth. The more you write, the more material the other person has to criticize. Keeping it brief signals that you don’t wish to get into a dialogue. Just make your response and end your letter. Don’t take their statements personally and don’t respond with a personal attack. Avoid focusing on comments about the person’s character, such as saying he or she is rude, insensitive, or stupid. It just escalates the conflict and keeps it going. You don’t have to defend yourself to someone you disagree with. If your friends still like you, you don’t have to prove anything to those who don’t.

INFORMATIVE

The main reason to respond to hostile mail is to correct inaccurate statements which might be seen by others. “Just the facts” is a good idea. Focus on the accurate statements you want to make, not on the inaccurate statements the other person made. For example: “Just to clear things up, I was out of town on February 12th, so I would not have been the person who was making loud noises that day.”

Avoid negative comments. Avoid sarcasm. Avoid threats. Avoid personal remarks about the other’s intelligence, ethics or moral behavior. If the other person has a “high conflict personality,” you will have no success in reducing the conflict with personal attacks. While most people can ignore personal attacks or might think harder about what you are saying, high conflict people feel they have no choice but to respond in anger – and keep the conflict going. Personal attacks rarely lead to insight or positive change.

FRIENDLY

While you may be tempted to write in anger, you are more likely to achieve your goals by writing in a friendly manner. Consciously thinking about a friendly response will increase your chances of getting a friendly – or neutral – response in return. If your goal is to end the conflict, then being friendly has the greatest likelihood of success. Don’t give the other person a reason to get defensive and keep responding.

This does not mean that you have to be overly friendly. Just make it sound a little relaxed and non-antagonistic. If appropriate, say you recognize their concerns. Brief comments that show your empathy and respect will generally calm the other person down, even if only for a short time.

FIRM

In a non-threatening way, clearly tell the other person your information or position on an issue. (For example: “That’s all I’m going to say on this issue.”) Be careful not to make comments that invite more discussion, unless you are negotiating an issue or want to keep a dialogue going back and forth. Avoid comments that leave an opening, such as: “I hope you will agree with me that …” This invites the other person to tell you “I don’t agree.”

Sound confident and don’t ask for more information, if you want to end the back-and-forth. A confident-sounding person is less likely to be challenged with further emails. If you get further emails, you can ignore them, if you have already sufficiently addressed the inaccurate information. If you need to respond again, keep it even briefer and do not emotionally engage. In fact, it often helps to just repeat the key information using the same words.

Example

Joe’s email: “Jane, I can’t believe you are so stupid as to think that I’m going to let you take the children to your boss’ birthday party during my parenting time. Have you no memory of the last six conflicts we’ve had about my parenting time? Or are you having an affair with him? I always knew you would do anything to get ahead! In fact, I remember coming to your office party witnessing you making a total fool of yourself – including flirting with everyone from the CEO down to the mailroom kid! Are you high on something? Haven’t you gotten your finances together enough to support yourself yet, without flinging yourself at every Tom, Dick and Harry? ...” [And on and on and on.]

Jane: “Thank you for responding to my request to take the children to my office party. Just to clarify, the party will be from 3-5 on Friday at the office and there will be approximately 30 people there – including several other parents bringing school-age children. There will be no alcohol, as it is a family-oriented firm and there will be family-oriented activities. I think it will be a good experience for them to see me at my workplace. Since you do not agree, then of course I will respect that and withdraw my request, as I recognize it is your parenting time.” [And that’s the end of her email.]

Comment: Jane kept it brief, and did not engage in defending herself. Since this was just between them, she didn’t need to respond. If he sent this email to friends, co-workers or family members (which high conflict people often do), then she would need to respond to the larger group with more information, such as the following:

Jane: “Dear friends and family: As you know, Joe and I had a difficult divorce. He has sent you a private email showing correspondence between us about a parenting schedule matter. I hope you will see this as a private matter and understand that you do not need to respond or get involved in any way. Almost everything he has said is in anger and not at all accurate. If you have any questions for me personally, please feel free to contact me and I will clarify anything I can. I appreciate your friendship and support.” [And that’s it: B.I.F.F.]

Conclusion

Whether you are at work, at home or elsewhere, a B.I.F.F. response can save you time and emotional anguish. The more people who handle hostile mail in such a manner, the less hostile mail there will be.

-----------------------------------------------------------------------------

Bill Eddy is an attorney, mediator and therapist, and the author of several books including SPLITTING: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder (New Harbinger, 2011) and It’s All YOUR Fault! 12 Tips for Managing People Who Blame Others for Everything (HCI Press, 2008). A new book on this subject is now available! BIFF: Quick Responses to High Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns (HCI Press, 2011). www.HighConflictInstitute.com.

Coaching for BIFF Responses

By Bill Eddy, LCSW, Esq.

© 2012 by High Conflict Institute

BIFF responses are designed to calm a hostile conversation. They can be written (or said) by anyone. However, it takes practice and helps to have someone review your BIFF response before you send it. BIFF stands for Brief, Informative, Friendly and Firm. This method is described in depth in the book BIFF: Quick Responses to High Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns.

Many people today are Coaches who are trained to assist individuals who are working on improving their interpersonal skills and/or dealing with a high conflict situation. This article is designed for professionals serving as Coaches, but it can be applied by anyone helping anyone write an effective BIFF Response.

Since High Conflict Institute was established four years ago, we have coached business partners, human resource professionals, neighbors, parents of adult children, spouses going through a divorce, and many others. We have learned that coaching for BIFF responses can be highly effective if the Coach asks the following ten questions of the individual who has written a draft of a BIFF Response (who I’ll call the “Client” – whether it’s a business client, friend or family member).

1. Is it Brief?

2. Is it Informative?

3. Is it Friendly?

4. Is it Firm?

5. Does it contain any Advice?

6. Does it contain any Admonishments?

7. Does it contain any Apologies?

8. How do you think the other person will respond?

9. Is there anything you would take out, add or change?

10. Would you like to hear my thoughts about it?

The Goal of Coaching for a BIFF Response

To be most helpful, a Coach for a BIFF response should point out that there is no single “right” way to write a BIFF response. In many ways it’s like cooking. What works for one person is almost always different from what works for another person. The BIFF response always belongs to the person writing it. It is very important for the BIFF Coach to avoid “correcting” the Client’s BIFF response as soon as it has been written. The goal is to help the Client learn to write BIFF responses, so he or she can do them on their own in the future, if necessary. The only way to effectively do that is to help the Client analyze his or her own BIFF response. These questions keep the focus on helping the Client do just that.

You will notice that the last question is “Would you like to hear my thoughts about it?” You might wonder why that isn’t the first question. You might really, really want to give suggestions right away. But by keeping this question for last, you put the focus on having the client really think about what he or she has written. This means that when you ask the first question, “Is it Brief?” you are careful not to start suggesting how it could be longer or shorter. Let the person think about it for a moment and decide for him or herself.

It helps to introduce these ten questions with an explanation like this:

“Whenever we write a BIFF response, it helps to discuss it with someone else before we send it. When I’ve given my BIFF drafts to someone else, they have usually suggested that I trim them down – sometimes even cutting them in half! And I’ve usually agreed! It’s hard to see in our own comments what might trigger more anger or misbehavior from the other person. It’s often easier for someone else to spot those trigger words or sentences. But I want to start out by letting you analyze your BIFF response, as this will help you get better and better at writing BIFFs that accomplish what you want.

“So I would like you to read your BIFF out loud. Then, I’m going to help you by asking you 10 questions, so you can think about your BIFF. And remember, there’s no one right way of writing a BIFF. My goal is to help you think about whether it will accomplish what you want with the person you are dealing with at this time.”

BIFF Writers Feel Vulnerable

One thing we have learned about coaching BIFF clients is that they often feel very vulnerable, because they are usually dealing with a high conflict person (an HCP) who is criticizing them mercilessly or making the Client’s life miserable in some other way. When they write a BIFF response, they are trying to regain a sense of balance and peace, so it is a time when they are very vulnerable to the feedback of others. Therefore, it is very important that they feel safe with you, rather than even a hint of personal criticism, as you help them decide whether they believe it’s going to be an effective BIFF.

With this in mind, it helps to be supportive and encouraging during the first nine questions, rather than exact. Your response to their answers can be positive, while leaving room for you to make suggestions at the end with question #10. So when your Client says: “I think it’s Brief,” you can say “It looks like that to me too” and move on. Then, when you get to say your thoughts at the end (but only if the person says “Yes, I want to hear your thoughts”), you can say something like this: “While it looks Brief, you might want to take out the third sentence, and make it even briefer. That sentence seems like it might trigger an emotional response because of … But of course, it’s up to you. It’s your BIFF. What do you think about that?”

You can use a similar response when the person thinks about whether it’s Informative. This questioning process does not need a big response. Most often the person will simply say: “Yes, I think its Informative.” Then you can say: “Ok. And do you think that it’s Friendly?” You can go through this questioning process quickly or slowly, depending on what the Client wants to say about it.

Sometimes, the Client will spontaneously decide to change something. That’s great! In this situation, you can ask the Client what he or she thinks about it now. You might ask your Client to read it out loud again and see what they think. Remember to keep the focus on the Client’s analysis of the BIFF – not yours.

The Triple A’s

The Triple A’s are: Advice, Admonishments and Apologies. These are less obvious than the first four questions about a BIFF response and are a whole chapter in the BIFF book. If your Client is not familiar with the Triple A’s or has forgotten them, you can briefly explain these when you ask questions 5-7:

“5. Does it contain any Advice? By this, I mean are you telling the other person how to deal with a particular problem a particular way? This almost always triggers a defensive and often attacking response back at you. Unless the person you’re dealing with specifically asked for your advice, it’s usually better not to give it – especially in a BIFF response that’s intended to end the conversation or give two limited choices. So do you see any advice in your BIFF as its currently written?”

“6. Does it contain any Admonishments? In other words, are you speaking to the person like a parent telling a child how to behave. This never works in a BIFF. When people are feeling defensive, the last thing they want is for you to tell them they are doing something wrong. The whole point of a BIFF is to calm down and end the conversation, without triggering a defensive response. Do you see any hint of that in your BIFF as it is currently written?”

“7. Does it contain any Apologies? This can be confusing. In general, apologies are a good thing. However, if you are dealing with a high conflict person, they tend to use your apologies against you, like ammunition. Avoid apologizing for anything of substance, like: “I shouldn’t have done such-and-such.” Or: “I’m sorry I hurt you by doing xyz.” Or: “I guess my strategy failed.” Or: “I know I haven’t been sensitive to your needs.” These types of apologizes blame you and HCPs are preoccupied with blame, and will use it to prove that it really is: All YOUR Fault! Of course, social apologies are okay, like “I’m sorry I’m a few minutes late.” Or: “I’m sorry to see that you’re in this difficult situation.” With this in mind, do you see any apologies in what you have written?”

Your Thoughts

When you finally get to your thoughts – if you have been asked to give them – it is important to make them tentative. Remember, there’s no one right answer and it’s up to the Client to decide how it is written. For example, “You might want to think about that third sentence. I think it might trigger an intense response from the person you’re dealing with, because he or she already said such-and-such. What do you think?”

Suppose the Client says: “I agree it should be changed. How should I say it?” Ideally, you will respond by saying: “Why don’t you give it a try first, and see how it sounds. You’ve been doing great so far.” This keeps the emphasis on your goal, which is to help the Client do his or her own analysis of the BIFF. It also helps boost the Client’s confidence, at a time when he or she may be feeling extremely vulnerable about writing anything, because of so much criticism from the person they’re dealing with.

If you decide to give a suggestion, try to give two or three: “You might try saying ‘…” or you might try saying it this other way “….” What do you think?” This helps them continue to think about it and make it their own writing, rather than simply doing what you said. The best coaching is when the Client feels smart, rather feeling that the Coach is brilliant. When you’re coaching, it’s not about you.

An Example

Suppose your client, Sam, has written the following BIFF response draft and ready to discuss it:

“Yolanda, thank you for your email. I thought about it a lot. I agree we should stop doing our math homework together. It will help us each try harder to learn it ourselves. But I disagree that I was just “using” you and not helping you at all. I’m still glad that we’re friends and will talk about other things when we’re together. Sam.”

After you’ve gone through all your questions, Sam asks you for your thoughts. It could go like this:

Coach: “Overall, I really like it. However, I’m concerned that the phrase ‘using you’ might backfire. Yolanda might focus on that and attack you back, such as: ‘Well, you WERE using me. I’M the one who figured out how to really do the assignment.’ Then, Sam, you’ll feel even more defensive. What do you think about leaving out that phrase? Or even that whole sentence?”

Sam: “But I can’t just let her think I was using her, because I wasn’t!”

Coach: “Well, it’s up to you, of course. But from what you’ve told me, I don’t think you will prove anything to her on this subject. If YOU are confident that you weren’t using her, then do you really need to even discuss it with her? Especially in this BIFF? Perhaps you could tell just her that sometime when you are being friends talking about something else.”

Sam: “I’ll have to think about it.”

Coach: “Why don’t you try reading it without that third sentence, and then decide.”

Sam: “ ‘Yolanda, thank you for your email. I thought about it a lot. I agree we should stop doing our math homework together. It will help us each try harder to learn it ourselves. I’m still glad that we’re friends and will talk about other things when we’re together.”

Sam: “You’re right. It does sound better that way.”

Coach: “Great! Let me know how it works out after you send it.”

And then you can tell yourself (privately): “Way to go, Coach!”

----------------------------------------------------------------------------------------------

Bill Eddy is the author of several books, including BIFF: Quick Responses to High Conflict People, Their Personal Attacks, Hostile Email and Social Media Meltdowns and the President of the High Conflict Institute. High Conflict Institute offers seminars, consultations (including BIFF Consultations), books and other resources for dealing with difficult people at work, at school, in divorce and anywhere. For more information: www.HighConflictInstitute.com.

Making Proposals

© 2013 by Bill Eddy, LCSW, Esq.

Any problem in the past can be turned into a proposal about the future. Proposals don’t have to be complicated. You can just blurt one out during a conversation with anyone or during a meeting with any group. Proposals get attention, because they are solutions to past problems by focusing on the future. Most of us are relieved to talk about the future, rather than what we’ve done wrong in the past. On the other hand, most of us easily slip into talking about the past – or even get stuck talking about the past – including what everyone else has done wrong. This article focuses on how to make proposals in a way that is easy and can be done at any time.

WHAT’S IN A PROPOSAL?

Ideally, proposals will include: Who does

What

When and

Where

For example: “I propose that you be the one who picks up Johnny after school and takes him to his soccer practice. Then, you can keep him overnight and bring him back to school the next morning.”

This is much better than saying: “You never took Johnny to any of his soccer practices. You always left it up to me. Then you showed up on Saturday at his games and made it look like you were such an involved parent. I want some respect here for all that I’ve done!” And then the other parent attacks back: “You never gave me a chance….” And on and on.

Can you see how it would have been so much simpler to just ask for what you wanted in the future by making a proposal? It saves all of the blame and defensiveness that people get stuck in talking about the past.

So proposals are always about the future. They are not about the past or about the other person’s intentions or Why they made the proposal. Why questions easily turn into a criticism of the other person’s proposal. “Why did you say that?” It really means: “I think that’s a bad idea.” And of course, if you think a proposal is a bad idea, then the best thing to do is to make another proposal – until you can both agree on something.

PROPOSING SOLUTIONS TO PROBLEMS

Most problems have many solutions. For example, here are some:

In a divorce dispute: “If you’re going to be late after work all the time to pick up the kids on Fridays, then I propose we just change the pickup time to a more realistic time. Instead of 5pm, let’s make it 6:30pm.”

And the other person might propose: “I’m going to talk to my boss and see if I can get out earlier on Fridays. I’ll let you know in a week. If not, then I’ll agree to your proposal. If I can, then let’s just leave it the way it’s scheduled now.” Or in a workplace dispute: “I propose that we talk to our manager about finding a better cubicle for you, since you have so many phone calls that need to be made and I often hear them.” And the other person might propose: “I can try to make my phone calls when you’re away from your cubicle. I know you’re in and out. Are there any regular times that you’re away each day?” These people can keep making proposals back and forth until they can agree on something. If each proposal takes into account what the other person was concerned about, then there is a good chance for success. It’s just a matter of time before they can fit their concerns together. ASK QUESTIONS ABOUT A PROPOSAL After one person has made a proposal, the other person may not be sure whether they can agree or not. Therefore, it often helps to ask questions. One of the best questions is to ask “What would your proposal look like in action?” This way you can get clearer on the Who, What, Where and When of the proposal. You might even ask: “What’s your picture of how this would work? What would you do? What would I do, if you could picture your proposal actually happening?” But of course, you don’t want to ask “Why” questions, because that usually starts up the defensiveness. And if someone’s defensiveness is triggered, then it makes it hard for them to think of solutions to problems. Why questions are usually really criticisms, not questions. Responding with YES, NO, or I’LL THINK ABOUT IT Once you’ve heard a proposal and asked any questions about it, all you have to do to respond to such a proposal is say: “Yes.” “No.” or “I’ll think about it.” You always have the right to say: “Yes.” “No.” or “I’ll think about it.” Of course, there are consequences to each choice, but you always have these three choices at least. Here’s some examples of each: YES: “Yes, I agree. Let’s do that.” And then stop! No need to save face, evaluate the other person’s proposal, or give the other person some negative feedback. Just let it go. After all, if you have been personally criticized or attacked, it’s not about you. Personal attacks are not problem-solving. They are about the person making the hostile attack. You are better off to ignore everything else. NO: “No, I don’t want to change the pickup time. I’ll try to make other arrangements to get there on time. Let’s keep it as is.” Just keep it simple. Avoid the urge to defend your decision or criticize the other person’s idea. You said no. You’re done. Let it drop. I’LL THINK ABOUT IT: “I don’t know about your proposal, but I’ll think about it. I’ll get back to you tomorrow about your idea. Right now I have to get back to work. Thanks for making a proposal.” Once again, just stop the discussion there. Avoid the temptation to discuss it at length, or question the validity of the other person’s point of view. It is what it is. When you say “I’ll think about it,” you are respecting the other person. It calms people down to know you are taking them seriously enough to think about what they said. This doesn’t mean you will agree. It just means you’ll think about it.

MAKE A NEW PROPOSAL: After you think about it, you can always make a new proposal. Perhaps you’ll think of a new approach that neither of you thought of before. Try it out. You can always propose anything. (But remember there are consequences to each proposal.) And you can always respond: “Yes.” “No.” or “I’ll think about it.” (And there are consequences to each of those choices, too.)

AN EXAMPLE

William and Natasha have a four-year-old daughter, Halle. They recently separated and have a hard time talking to each other right now, because they usually argue. However, they both love Halle and want the best for her. They need to decide how they will share parenting time with Halle. They are going to meet with a Family Mediator to help them reach an agreement. They are each to prepare a proposal and have each read articles that say different things about the best parenting plan. Natasha has read that young children should have the stability of one primary parent, with the active involvement of the other parent. The article said this is especially true with children up to age 3 or older. William has read an article that recommended sharing parenting 50-50. It seemed to suggest that this works best after children are at least 5 years old. They were both told by their Family Mediator that the best plan is always one that both parents can agree upon. The children should feel that their schedule is normal and routine, and that their parents aren’t always stressed out or fighting over the schedule. Neither William or Natasha want to keep fighting about this. Here are their initial proposals: Natasha’s First Proposal: “I read an article that says its best for young children to have one primary household, but that the other parent is involved every week. So I propose that Halle live with me most of the time, but that she spend one day and overnight each week with you. In my proposal you would also have half of the major holidays each year, then we could alternate the following year.” William’s Question: “I have a question about your proposal. What day and overnight were you picturing that I would have each week?” Natasha: “I was thinking you’d have Friday nights and all day Saturdays each week.” William’s Response: “Ok, I think I understand your proposal. I would say No to that, as I read an article that says that it’s best for children to have approximately equal time with each parent.” William’s First Proposal: “I propose that Halle spend 6 days and nights with me in a two-week period, so you would have 8 nights in the same period, as I recognize she’s been with you more of the time up to now. After she’s five, I’d like a 50-50 schedule, so this would be a transition.” Natasha’s Question: “Which nights would you be thinking of having with her?” William: “I’d like a weekday overnight every week – like Wednesdays – and I would alternate weekends Friday at 5pm through Monday morning back to daycare one weekend and Friday overnight the other weekend.” Natasha’s Response: “Well, my answer to that would be No. I think she’s way too young to be spending that much time away from me, as I’ve been her primary caregiver for all these years. And

that just seems like too much back and forth for a girl that young. However, I might be willing to consider that she spend a little more time with you, especially as she gets older. William: “But I want to be fully involved in her growing up – weekdays with her schoolwork as well as weekends. So here’s another proposal…”

----------------------------------------------------------- These are at least 3 possible proposals for William to make now. No one proposal is right for everyone’s situation, and there is usually more than one solution to a problem. Here are a few:

Option 1: 3 nights/11 nights in two weeks

William’s New Proposal: “I would agree to have three nights every two weeks. I would have Wednesdays overnight every week and Friday night and all day Saturday every other week.”


William’s New Proposal: “I would agree to have four nights every two weeks. I would have Wednesdays overnight every week and alternate weekends from Friday at 5pm to Sunday at 5pm.”


William’s New Proposal: “I would agree to have five nights every two weeks. I would have Wednesdays overnight every week and alternate weekends from Friday at 5pm to Monday back to school.”

Some parents would agree on Option 1, some on Option 2 and others on Option 3. The reality is that there is not a huge difference between these options. William and Natasha could go back and forth asking questions of each other and making proposals until they reach an agreement – with the assistance of a mediator, collaborative professionals, a therapist or lawyers. The idea is that the process of making proposals helps build an agreement that can end up working the best for the people involved. Be patient and creative, and you can probably come up with a good solution. CONCLUSION: AVOID MAKING IT PERSONAL In the heat of the conflict, it’s easy to react and criticize the other person’s proposals—or even to criticize the other person personally, such as saying that he or she is arrogant, ignorant, stupid, crazy or evil. It’s easy and natural to want to say: “You’re so stupid it makes me sick.” Or: “What are you, crazy?” “Your proposal is the worst idea I have ever heard.” But if you want to end the dispute and move on, just ask for a proposal and respond with “Yes” “No” or “I’ll think about it.”

-----------------------------------------------------------------

Bill Eddy is the author of several books, including BIFF: Quick Responses to High Conflict People and SPLITTING: Protecting Yourself While Divorcing Someone with Borderline or Narcissistic Personality Disorder. He is also the President of the High Conflict Institute in San Diego, California, which provides training to professionals and consultation for anyone dealing with high-conflict disputes. His website is: www.HighConflictInstitute.com.

Protecting Clients, Children, Staff and Lawyers from Violence, Kidnapping and Stalking

1:00 p.m.-2:15 p.m.

Presented byBill Eddy Thomas LanglasHigh Conflict Institute Gallagher Langlas & 625 Broadway, Suite 1221 Gallagher PCSan Diego, CA 92101 405 E. Fifth StreetPhone: 619-221-9108 Waterloo, Iowa 50704http://www.highconflictinstitute.com/ Phone: 319-233-6163

Laura Roan Robert Greenlee IIIIowa Attorney General's Office Sergeant-Patrol DivisionHoover Bldg., 2nd Floor Watch 1Des Moines, Iowa 50319 Waterloo Police Phone: 515-281-3648 Department

Phone: 319-291-4340



Red Flags for High Conflict Clients and Opposing Parties

© 2013 by Bill Eddy, LCSW, JD, CFLS

Most attorneys know that there are potential high conflict clients out there who can make your life miserable with numerous unreasonable demands, a preoccupation with blaming others (eventually you!) and sometimes present a risk for physical danger. Often, high conflict clients catch us by surprise in the middle of the case, after they started out seeming fairly reasonable. This is common, as high conflict clients know at some level that they are difficult and try to present their best side to us – perhaps in hopes that we will work wonders for them if they’re really nice to us. However, this often doesn’t last and their other “side” comes out and can be more or less extreme.

High conflict opposing parties can also present risks and sometimes are more of a threat. They have no investment in a relationship with you and they may create a more distorted fantasy of who you are and the power you have to hurt them. As the opposing counsel, you can become the focus of all of their anger and resentments.

Are There Warning Signs?

In most cases, there are some warning signs to watch out for. In general, notice if your client or the opposing party has:

Lots of all-or-nothing thinking (their solutions to problems may seem unusually extreme)

Unmanaged emotions (their reactions are way out of proportion, they can’t stop their angry moods or crying - or they are overly controlled, as if sitting on a powder keg)

Extreme behavior (their history includes actions that 90% of people would never do)

A preoccupation with blaming others (do they ever accept responsibility for anything?)

These four cues are common with high conflict clients. Watch out for your client’s extreme language about the other party, because someday they may say the same things about you and focus their anger on you. Also, notice if they go more than 30 minutes talking about someone else’s bad behavior, while accepting no responsibility themselves. Within 30 minutes, most people say things like: “I never should have married him.” “I should have ended the relationship with her long ago.” These statements are good signs.

Unfortunately, many high conflict clients won’t take responsibility for anything. That’s a bad sign. They have a “target of blame” that they focus on with great intensity when things go wrong. “It’s all his fault!” or “Her fault!” or “Your fault!” This target can change quickly, or include more than one person or group of people.

What Extreme Behaviors Could Occur?

If a high conflict client or opposing party has a personality disorder or some traits, that means that he or she has a narrower range of behavior that will repeat and repeat. Look for patterns. Does the person tend to spread rumors to other people? Run away from problems (like disappearing with the kids)? Send hostile emails or other communications over the Internet? Verbally assault someone they have a minor problem with? Get physical – like pushing or hitting – or worse? Making threats? Their most extreme behavior is what you are likely to see occur again at times of high risk (see below). You might ask what the worst conflict was in their lives – and how they dealt with it.

If the person has a history of loss of self-control, such as substance abuse, verbal confrontations, inability to remove himself/herself from conflicts, there is a higher risk of uncontrollable aggressive behavior. If the person has weapons, keys, friends with dangerous histories, or other indicators of easy ability to engage in dangerous behavior, that should be concerning. The biggest predictor of future behavior is past behavior.

What are Times of High Risk?

High conflict people tend to be most dangerous when they feel a sense of relationship loss – even if it’s not what someone else would see as a serious loss. For them, the losses tend to occur when they:

Feel abandoned or are actually being abandoned by someone important in their lives

Feel a loss of self-esteem and superior public image - especially being humiliated

Feel loss of control over another person who they used to control

Feel loss of control over events around them

Feel loss of a pet or piece of property that they are very attached to

You can see that all of these types of losses frequently occur in legal cases – whether they are the loss of a life partner in divorce, loss of money or business in a lawsuit, loss of status in the community, and so forth. You can also see that lawyers are easily associated with these losses – either representing a client who experienced the loss (you didn’t do enough to prevent it) or representing the client who “won,” so that the opposing party holds you responsible for causing the loss to occur, even if you had nothing to do with the underlying facts of the case. You represent these losses in their eyes – and it’s easier to hate you than the other party, with whom your client may still be attached regardless of the facts of how they’ve been treated.

More specifically, times of high risk for this feeling of loss – for your client or the opposing party - can occur at any step in the legal process:

You serve papers or papers are served on your client.

You attend a court hearing where your client or opponent loses a lot.

Your client/opponent loses time with a loved one (child, former spouse, etc.).

Your legal case ends.

Your client/opponent starts a new relationship, gets married, or has a child.

Your client/opponent experiences a major setback in his/her own life later on. (I have had several family law cases in which custody battles and support battles occurred when unrelated events went poorly after the divorce for one party.)

For example, many of the murder/suicides in divorce and custody disputes occur within two weeks of a court hearing or other formal decision-making event – either before or after and sometimes on the same day. (Unpublished research by the author. See two examples below.)

Two Examples of Times of High Risk

On January 30, 2013, in the Phoenix area, Arthur Harmon attended a business mediation at the office of the lawyer-mediator. The case was about a business dispute over money related to some subcontracting work Mr. Harmon had done for the company. The mediation was attended by the CEO of the company and his lawyer, while Harmon represented himself.

Apparently, Harmon had a history of lawsuits and an anger problem well-known to many people. He communicated with the lawyer for the company on several occasions, at one point writing him saying: “I am going after you with every fiber in my being and I won’t rest until I see you behind bars for conspiracy to defraud.”

Should the lawyer be concerned after reading that statement before the mediation occurred? It appears to have all of the four warning signs I listed at the start of this article: All-or-nothing thinking or solutions (attorney should be “behind bars”); unmanaged emotions (“I won’t rest…”); extreme behaviors (“I’m going after you with every fiber in my being…”); and a preoccupation with blaming others (it’s all your fault – no effort to share the problem or a solution). While this may sound like a lot of clients or opposing parties, it’s these key warning signs that I believe may predict trouble.

Apparently, the lawyer and CEO went ahead with the mediation. Right after the mediation ended, the 70-year-old Harmon shot and killed the CEO and the CEO’s lawyer, Mark Hummels, 43. Harmon reportedly had a reputation as “angry, a bully, a nut job.” He had a history of filing at least 5 lawsuits since 1994. He swore at and made threats to Mr. Hummels over a period of time. Obviously, his thinking was very distorted, but he did share that thinking in ways that left warning signs.

(Crimesider Staff. Arizona Office Shooting Update, CBS News.com, Feb. 1, 2013. http://www.cbsnews.com/8301-504083_162-57567121-504083/arizona-office-shooting-update-phoenix-lawyer-mark-hummels-dies-from-workplace-shooting-injuries/) (Muskal, M. Phoenix lawyer shot after mediation session dies, Los Angeles Times, Feb. 1, 2013. http://articles.latimes.com/2013/feb/01/nation/la-na-nn-lawyer-wounded-in-phoenix-office-shooting-dies-20130201)

In February 6, 2011, in Central California, a family court hearing was scheduled to deal with a piece of property related to a divorce. The property was a lakefront home and the husband was so attached to it that he forged documents to keep it and destroyed items of his wife when he had to move out. It was now at issue in the case and she was probably going to get it. He also had a history of domestic violence and remained bitter even years after their separation.

On the day of the hearing, apparently the matter was continued to the afternoon. While the wife and her attorney, Judith Soley, a Certified Family Law Specialist in Fresno, were at a restaurant at lunchtime, the estranged husband showed up and shot and killed them both. Ms. Soley had been practicing for over 30 years.

(Fresno stunned by slayings of prominent lawyer and her client. California Bar Journal, March 2011. http://www.calbarjournal.com/March2011/TopHeadlines/TH5.aspx. Hoggard, C., et al Sandrick, S., Yurong, D. & Handy, S. Bass Lake tragedy, the victims and a bitter divorce. ABC – KFSN-TV Fresno, CA. Feb. 17, 2011. http://abclocal.go.com/kfsn/story?section=news/local&id=7965277)

Were there warning signs? I believe that the man’s history of uncontrollable anger (unmanaged emotions; extreme behavior; preoccupation with blaming his wife) and his likely sense of loss of the home and public exposure for forging a document created a time of high risk.

Conclusion

Of course, looking backward in retrospect is easier than anticipating times of high risk and observing characteristics of high conflict clients and opposing parties. However, I believe that the four warning signs I have described can be helpful in taking precautions with certain people – especially at certain times when the risks of a feeling of serious loss may be highest.

------------------------------------------------------

Bill Eddy is a family lawyer in San Diego, as well as a therapist and family mediator. He is the President of the High Conflict Institute and the author of several books, including: It’s All Your Fault! and BIFF: Quick Responses to High Conflict People. He also co-developed the “HCI PatternViewer,” a computerized method of presenting patterns of high conflict behavior in court and to promote settlement. He has many free articles and other resources for professionals and clients on his website at www.HighConflictInstitute.com. He can be reached at 619-221-9108.

Investigating Stalking: Homicide Prevention By Laura Roan, Assistant Iowa Attorney General

Anyone can be a victim of stalking. However, women are at greater risk than men for stalking victimization and nearly 3 in 4 stalking victims knew their offender. Stalking is a predictable, dangerous outcome of domestic violence and in some instances, leads to homicide. Nationally, eighty-one percent of stalking victims were previously assaulted by their stalker. Therefore, even if the victim leaves an abusive relationship, she is not necessarily safer and, often, is in more danger than she was before. When a victim leaves, the control is threatened and the goal becomes re-attachment with the victim by any means. The batterer seeking to re-attach will increase the threat level until he achieves that goal. Commonly, domestic violence murder is a culmination of stalking behavior. “[D]omestic violence is a pattern of behavior, with each episode connected to the others. State v. Sullivan, 679 N.W.2d 19 (Iowa 2004). Law enforcement should investigate and consider a stalking charge: 1) when the victim says she is being stalked; or 2) the batterer has violated a no contact order; or 3) the batterer has committed a series of petty crimes directed at the victim, her family such as phone harassment, criminal trespass or vandalism. Starting an Investigation: Create a Time-line with the following information:

a. Chronicle all of Defendant’s unwanted contacts/calls/drive-bys with the victim, victim’s immediate family, friends and co-workers.

b. b. Indicate periods of no contact/ protective orders, criminal charges and jail stays/arrests.

c. Include a history of violence (by date) prior to the separation of the parties and a complete record of convictions plus underlying complaints and guilty pleas

d. Obtain copies of all pro se petitions for protective orders & transcripts from any hearing where evidence was presented. These documents provide valuable information about the history of the abuse and may include statements/ admission the stalker made under oath.

c. e. Indicate all periods of incarceration including dates of release.

f. Include the stalker’s suicidal, depressive episodes or threats of suicide, if any.

g. Chronicle victim’s responsive conduct showing fear (moves to shelter, calls to police, 236 petitions).

h. Note persons/order directing Stalker to stay away. i. Preserve prior 911 calls for service/ call logs. j. Subpoena/ seize stalker’s phone records/email/social media accts k. Use victim’s journal and a calendar to cross-reference. l. You are ready for the subject’s interview

Charging: There are 3 elements to the charge of Stalking: 1) engaged in a course of conduct directed at a specific person 2) knew /should have known conduct would cause reasonable

fear of bodily injury or death to person or immediate family 3) conduct caused victim fear of bodily injury / death The Timeline: In determining a charge, start by drawing a time-line of the stalker’s conduct. Begin with the date of separation or date the no contact order was entered, if one was. For example, if, after the court enters a no contact order the batterer sends two text messages and then drives by the victim’s house, prepare the time-line as follows: 1/4/13 1/8/13 1/9/13 1/9/13 1/14/13 _I__________I___________I_____________I____________I__ NCO 4 Text Msgs 8 Text Msgs Drive-by Arrest for violation of NCO In the above scenario, the stalker committed the crime of Stalking once he sent the second text message. Furthermore, Iowa’s statute certainly criminalizes the drive-by conduct. It falls under “visual or physical proximity” and so it too should be included in your charge time-line. This charging time-line is a persuasive tool when used as a demonstrative exhibit at trial. Because there was a No Contact Order, it is a D felony. When charging, narrow the course of conduct to a period of time certain that is manageable from a proof standpoint. For example, if the stalking has gone on for two years, it may be prudent to actually charge a timeline that is much shorter than that, such as one month, one week or two days. Remember, “course of conduct” is only “two or more occasions.” Iowa Code section 708.11(1)(d). Acts that fall outside the course of conduct are still admissible. Not as 404(b) evidence but as direct prior of an element (eg. the victim’s fear was reasonable). Under Iowa law, prior acts of the stalker, such as those which brought about the no contact order, would be admissible at trial, not as prior bad acts but as relevant and material proof of an element of the offense (eg. proves that victim’s fear was reasonable; also proves the Defendant knew or should have known his actions would place victim in reasonable fear). State v. Helmers, 753 N.w.2d 565 (Iowa 2008). Iowa’s stalking law is a general intent crime. It criminalizes a course of conduct defined as “two or more acts” directed at a specific person. Iowa Code section 708.11. State v. Neuzil, 589 N.W.2d 708 (Iowa 1999). In the above timeline, even if the stalker pleads guilty to the violation of NCO charged on 1/14/13, it is not double jeopardy to thereafter charge him with felony stalking due to the existence of the no contact order. State v. Beecher, 616 N.W.2d 532 (Iowa 2000).

In the above scenario, the prosecutor must also prove that the stalker’s conduct actually caused fear. So, gather evidence that the victim changed jobs, started taking a different route to work, changed the locks on her residence, called the police, installed a security alarm at her residence, took her identifying information off of public websites, kept a journal, sought help from crisis intervention services, etc. State v. Limbrecht, 600 N.W.2d 316 (Iowa 1999).

>This is a criminal mischief charge. It is also part of a course of conduct for a stalking charge, even if the stalker has previously pleaded guilty to the offense of criminal mischief for this act. It is not double jeopardy. State v. Beecher, 616N.W.2d 532 (Iowa 2000).

Prior arrests and convictions are admissible at trial to prove the intent element. State v. Bonert, unpublished, 2-671 / 11-1677 October 3, 2012; State v. Helmers, 753 N.W.2d 565 (Iowa 2008). Charging Enhancements: Stalking is an Aggravated Misdemeanor. 708.11. The charge may be enhanced as follows: Possesses a dangerous weapon, pending no contact order/ protective order, victim is under 18 years of age or the offense is a 2nd offense – D Felony, Sec. 708.11(3)(b). The offense is a 3rd offense – C Felony, Sec. 708.11(3)(a). Lethality Assessment: Victims who are stalked are in the predictive center for domestic violence murder. When a batterer makes contact with the victim during the term of a protective order or a victim of intimate partner violence says she is being stalked, family law specialists, police and prosecutors should stand at attention. An ensuing arrest and prosecution for the crime of stalking could prevent another fatal statistic.

Access to Firearms? Prior Strangulation? Suicide threat (real or a threat to gain compliance? – both dangerous) History of abuse? Prior periods of separation?

Suggested Reading: The Batterer as Parent Lundy Bancroft Why Does he Do That? Lundy Bancroft The Gift of Fear Gavin DeBecker www.dangerassessment.org Jacqueline Campbell

http://www.dangerassessment.org/

He Would Stop at Nothing:

STALKIING in Iowa

October 2013

What is it?

Behaviorally: pattern of unwanted, threatening contact

“A crime of mental torture” - Saunders

Criminally: meets the elements of 708.11, Iowa Code

The Link Between DV & Stalking

“[D]omestic violence is a pattern of behavior, with each episode connected to the others

State v. Sullivan, 679 N.W.2d 19

(Iowa 2004).

DV Murders in Iowa

Average ___ per year since 1995

Conflict vs Violence

- It was “volatile”

- It was “rocky”

- It’s a messy divorce

- It’s a bitter custody battle

Goals of a Stalker

Re-attachment

Revenge

Vindication

The Stalker’s Thought Process

I’m not doing anything wrong, if I am I won’t get caught, if I get caught I’ll talk my way out of it, if I can’t talk my way out of it the consequences will be light.

Lethality indicators

Access to Firearms - 70% IA

Prior Strangulation? – 60% CA

Prior NCO violation - 55% IA

Suicide threat (real?)

History of abuse

Period of separation?

Types of violencePhysicalVerbalPsychological

Types of threatsVeiledConditionalDirect

WORKPLACE VIOLENCE

Reportable act – Report All IncidentsAny violence, threat or other aggressive behaviorSources can be a from both inside and outside your workplace

Types of threatsVeiledConditionalDirect

WORKPLACE VIOLENCE

WORKPLACE VIOLENCEEffectsPhysical injuriesPsychological/emotional damageInterruption in businessIncreased costs (ex: increased security)Damage to public image

Possible Violence If Any of These Conditions Exist:

Verbal abuseExcessive profanityConsistently

argumentativeFailure to cooperateInappropriate

commentsNegative attitude

toward policies/procedures

Expressing suicidal thoughts

Frequent displays of anger, such as clenched fists, red face, tight jaw (also known as “posturing”)

Your Personal Conduct May Prevent Things from Blowing Up! What to Do! Stay Calm Listen Let them know

you are interested

Acknowledge the person’s feelings

Be reassuring and point out choices

Accept criticism in a positive way

Establish ground rules

Ask what you can do to help

Position yourself so you have access to an exit

1.Do NOT get physical 2.Do NOT over-react 3.Do NOT take the challenge 4.Be a good listener 5.Know what is really being said 6.Give them space 7.Watch what you say non-verbally 8.Referance self-interest 9.Speak of consequences NOT threats

THINGS TO REMEMBER

Things to Avoid!

Speak in a way that shows Apathy Brushing off Condescension Giving the run-a-

round Reject all demands Challenge or dare Pose in challenging

stances

Attempt to bargainTry to make the

situation seem less serious

Make false statements

Take sides or agree with distortions

What’s wrong with this picture?

SAFETY TIPSDO:Limit access through reception deskBe aware of your surroundingsKnow where your exits areImplement a “buddy system”Leave with keys in handConsider workplace layouts

DO:Secure your workplace daily – Keep doors locked unless

they have to be unlockedPurchase a key fob system instead of keys. One key lost

can cause breech of security and cost of re-keying all locks. Each key fob can be individually deactivated

Install intercom and push button unlock system at front desk to prevent unauthorized entry

Place a magnetic lock on front and rear doors with a camera system tied into the front desk or designated employee’s desk

SAFETY TIPS

SAFETY TIPSDO:Move your vehicle to a well lit and closer place if

working lateEscort all visitors / clients in the workplaceAvoid allowing unauthorized people / strangers into

more areas than necessary. Don’t allow them to know the building layout and your escape routes.

They may use this to their advantage in a planned assault

Keep potentially violent clients from isolating employees

Designate a room for dealing with potentially violent clients (visible and able to be heard)

Install silent panic alarms with both internal and external alerts if problems arise

What Should You Report?Call 911 if it’s an emergency

Name of threat makerName of victim or

potential victimWhere and when did it

occurWhat happened prior to

the incident Specific language of the

threat Any physical conduct

that would substantiate an intention to follow through on the threat.

Names of any supervisory staff involved and how they responded

What event(s) triggered the incident

Any history leading up to the incident

The steps which have been taken to ensure that the threat will not be carried out

Suggestions for preventing workplace violence in the future

Crime Prevention Through Environmental Design

Program To ImplementDivide Employees Into TeamsEach Team Evaluate A Different Aspect Of Their

External And Internal SafetyEx:

• Lighting• Office Layouts (Each Area Will Have Different

Concerns)• Entrance(s) / Exit(s)• Security Cameras / Panic Alarms / Entrance buttons• Crisis Manual• General Safety (Corner mirrors, scuff strips on

stairs, etc…)

Crime Prevention Through Environmental Design

Bring Your Findings Back To The Table And Evaluate Them

Come Up With The Best Plan For Your EnvironmentManagement Will Make The Final Say In What Is

Implemented But Each Person Has Input Periodically evaluate this plan If incident occurs, sit down and evaluate what

worked and what didn’t. Each situation may bring further concerns to the table.

RESOURCES

1. https://www.osha.gov/SLTC/workplaceviolence/ An overview of workplace violenceincluding resources for prevention of workplace violence.

2. https://www.llis.dhs.gov/content/active-shooter-2 examples of shooter preparedness andplans for specific organizations who have experienced mass shootings. This resource alsoprovides plans for specific public places and situations.

3. http://www.dhs.gov/training-programs-infrastructure-partners Array of web-basedtraining programs free of charge ranging from critical infrastructure protection programsto responding to an active shooter situation.

4. http://www.dhs.gov/active-shooter-preparedness Offers web-based training videos inaddition to active shooter materials in English and Spanish.

5. http://www.youtube.com/watch?v=zcnA Cq Csk A how-to-video on surviving a shootevent prepared by the City of Houston.

6. http://www.fbi.gov/stats-services/publications/workplace-violence An FBI response tothe 9/11 terror attacks. This resource covers planning and strategic issues for preventingviolence, domestic violence and stalking in the workplace and dealing with the aftermathof a workplace violence situation.

7. http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/january2011workplace violence prevention A short bulletin published by theFBI discussing survival and intervention of workplace violence.

8. http://www.ncdhhs.gov/humanresources/violense/library.html The Department ofHomeland Security workplace violence training research library. This resource offersinformation on how to recognize potential problems, what you should do in a violentsituation and terrorism and other disasters.

9. DeBecker, Gavin “The Gift of Fear”. Bantam Dell Publishing Company (1997). Survivalsignals that protect us from violence. “This book can save your life. Should be read byeveryone who wants to triumph over fear.” Scott Gordon, Chairman of the Domestic Violence Council.

http://www.dhs.gov/training-programs-infrastructure-partners

http://www.dhs.gov/active-shooter-preparedness

http://www.youtube.com/watch?v=zcnA

http://www.ncdhhs.gov/humanresources/violense/library.html

Lawyer and Client Preparation to Make Mediation Work

2:15 p.m.-3:15 p.m.

Presented byChad Kepros Bill EddyBray & Klockau P.L.C. High Conflict Institute402 South Linn Street 625 Broadway, Suite 1221Iowa City, Iowa 52240 San Diego, CA 92101Phone: 319-338-7968 Phone: 619-221-9108

Lora McCollomLora McCollom Law Firm PLLC4401 Westown Parkway, Suite 208West Des Moines, Iowa 50266Phone: 515-974-6500



Pre-Mediation Coaching: 4 Skills for Your

Mediation Clients


Whether you are a lawyer, counselor, manager or other professional, you are likely to be involved in mediation regularly or occasionally. Legal professionals are required to have their clients participate in mediation before going to court in many kinds of disputes these days. Yet mediation isn’t perfect and some disputes unfortunately remain unresolved, despite the mediator’s and others’ best efforts. Studies show that 60-80% of disputes are resolved in mediation, depending on the type of dispute, so it still has a great track record and is the preferred approach in most situations – but perhaps we can do even better. In an effort to make mediation more effective – especially in high conflict cases – some mediators offer pre-mediation coaching services, or have other professionals provide this service. In this article, I suggest that pre-mediation coaching can be particularly effective if it includes teaching and practicing 4 specific skills, especially for clients dealing with a high-conflict dispute. This article is followed by a 2-page handout for clients, which you have my permission to use in individual coaching sessions. When to Provide Coaching Depending on the nature and history of the dispute, it can be very helpful to have a coaching session with each client several days before the mediation begins. This way, each participant can realistically think about the mediation process and can start thinking about making proposals and calming himself or herself down. Yet you don’t want to do this too long before the mediation, or it may add to the person’s anxiety. It’s also possible to do this at the beginning of the first mediation session, either separately or with both parties together. You can send out the attached client handout (4 Skills for Mediation) with pre-mediation materials, then refer to it and reinforce the 4 skills at the beginning of the mediation. If you are dealing with a very high-conflict dispute, however, it is highly recommended that the parties have training in using these 4 skills several days before the mediation. You might even consider having more than one pre-mediation coaching session for each client. Who Should Provide the Coaching? The mediator? In ordinary disputes, the mediator can probably do this coaching – either before the mediation or at the beginning of the first session. A lawyer? If you are a lawyer with a client who has been referred to mediation, you may be in the ideal position to coach your client on using these skills in mediation. You already have a relationship and you know the basic facts of your client’s case. These skills will also help you in your own work with your client, especially in managing your client’s stress and potentially resolving the entire case out of court. A mental health professional? Depending on the nature of the dispute and the level of expected conflict – and how long it has been going – it may be wise to have a mental health professional or another experienced mediator provide the pre-mediation coaching. Such a professional may be able to use counseling skills in calming the client, helping the client see other points of view, and dealing with any related mental health issues. By having someone other than the mediator provide the coaching, it reduces any effort by a possible “high conflict” person (one who chronically gets into conflicts, remains in conflicts for a long time and makes them worse) to hook the mediator into their upset emotions and extreme point of view. High conflict people (HCPs) usually put a lot of energy into persuading others – even neutral mediators – to

take their side and to become responsible for resolving their problems. They usually forget that the mediator is supposed to stay neutral. Getting Acquainted If the mediator or another professional is meeting each client for the first time, it is fine to get acquainted with some chit-chat and basic information about the case. However, you don’t want to get too deep into the client’s upset emotions about the case, as the focus of your session is to teach skills that the client will use. (A coach who is not the mediator should make sure to avoid becoming involved in the case in any other way, like telling the mediator anything about the content. The client needs to be responsible for that, although you can help the client practice.) Teaching the 4 Key Skills It’s helpful to tie the skills to the issues that the client has mentioned. Explain each skill by saying how it can benefit the client. For example:

1. Managed emotions: Learning this skill can help you stay calm when so-and-so is talking in the mediation. It will help you appear reasonable and focused on solutions.

2. Flexible thinking: Can help resolve your dispute in a way that works for you. 3. Moderate behavior: Realizing how to communicate so you don’t make the other person

defensive can be really helpful, since most people don’t think about that when upset. 4. Check yourself: This helps you remember to use the skills during the mediation process.

Practicing with the Client If it seems appropriate, you can practice at least one example of one of these skills in a role-play exercise with the client. Suggest that the client take the role of the Other Party in the dispute for a minute or two, and you can play the Client. Ask the client (playing the Other Party) to say something the Other Party might say in the mediation that would be upsetting for the client. Then, you (playing the Client) respond using one of the skills. For example: Other Party says: You’re not getting enough work done! You’re always slow!

Client (you) says: (Remembering not to take it personally): Then I have a proposal: Why don’t you tell me what your priorities are, since you have several projects for me.

Then, switch roles and you be the Other Party and let the Client play himself or herself. Repeat the exercise. Clients often find this very helpful, because they didn’t have the words and just got upset in the past. If you have time, you can do several such exercises or you can let the client talk about other issues. Ask the Client to Summarize At the end of the Coaching session, ask the client to summarize what he or she has learned. This helps the client remember better and shows how important you believe these skills are for his or her success. ------------------------------------------------------------------------------------------------------------------------------- Bill Eddy is a lawyer, therapist and mediator. He is the author of several books and the President of the High Conflict Institute, which provides speakers and trainers on managing high-conflict disputes in several areas, including legal, workplace, healthcare, education and families. For more information go to: www.HighConflictInstitute.com.

4 Skills for Mediation A Client Handout


If you’re preparing for a mediation to solve any type of problem, it helps to know about 4 key skills that can help you during the mediation process. Most mediations involve a mediator who has been trained to stay neutral and help the participants make their own decisions. The mediator is in charge of the process and the participants are in charge of making proposals and making decisions about the issues at hand. Sometimes people try to persuade the mediator to take sides, but the mediator is supposed to be very careful to stay neutral and to help the parties make their own decisions. The following 4 skills can help.

1. Managed Emotions Talking about unresolved issues can be emotionally upsetting. However, it is possible to manage your own emotions by anticipating upsetting moments and preparing for them. Don’t be surprised if you feel frustrated or angry upon hearing different points of view, hearing proposals you don’t like, and having to think of alternatives. Remember that most conflicts are resolved through this process of talking and listening and creating solutions. Prepare yourself to deal with any possible difficult moments. How can you help yourself stay calm? One of the best techniques is to memorize short encouraging statements that you can tell yourself as you are going through the process, such as: PATIENCE:

The agreement at the end is all that matters. Sometimes it takes a while, but an agreement is usually reached. With high-conflict emotions it usually takes longer, but agreements can still be reached.

DON’T TAKE IT PERSONALLY:

Personal attacks are not about me – they’re about the person who lacks self-control. I don’t have to defend myself or prove myself – I’m already okay as a person. We can disagree about the past – reaching an agreement about the future is what matters.

2. Flexible Thinking

A big focus of mediation and other settlement methods is making proposals. It helps to prepare proposals for each issue you are trying to resolve or plan to raise in the mediation. That way you don’t get stuck in “all-or-nothing thinking” and can avoid just getting upset when your first proposal isn’t immediately accepted. Any concern about the past can be turned into a proposal about the future. It can help to prepare two proposals on any issue that you or the other person is likely to raise, so that you don’t get stuck if your first proposal is not accepted right away. You can make a list of issues and then write two proposals for how you would like to see each one get resolved. Responding to proposals is another area in which practice can help. In general, just respond with “Yes” “No” or “I’ll Think About It.” This saves arguing over the proposal itself, since what really matters is finding an agreement. Of course, you can ask questions about a proposal for greater understanding and to picture how it would look if you both agreed. But avoid challenging questions, like: “Why did you say that?” Or: “Do you realize that’s ridiculous?” If you disagree, just pause and calmly say “I won’t agree to that,” and focus on making a new proposal yourself.

3. Moderate Behaviors Mediation is a structured process, to help people think of reasonable solutions to problems, even when they are upset. Therefore, there are several ground rules in most mediations. It helps to think about them in advance and remind yourself to follow them, including:

A. Don’t interrupt while the other person is speaking. Instead, make notes to remind yourself of any ideas that pop up while he or she is talking. Then you can raise them when appropriate.

B. Treat everyone with respect. This means avoiding insulting comments, raising your voice or pointing fingers. These behaviors often trigger defensiveness in the other person. Instead, you want everyone to stay calm and rational, in order to focus on solving the problems you came to discuss. Speaking respectfully goes a long way toward reaching agreements that will work and last over time.

C. Use “I” statements. These are sentences that start with “I feel…” or “I prefer…” or “I have another idea…” Avoid “You” statements, such as “You always…” or “You never…” “You” statements tend to trigger defensiveness in the other person, which will make it harder to reach an agreement. Just use “I” statements to convey your own perspective, rather than assumptions or criticisms of the other person’s perspective. Remember, all you need to do is to reach an agreement. You don’t need to try to change the other person’s way of thinking (which is unlikely anyway).

D. Ask to take a break, if necessary. Avoid just getting up and walking out. Ask for a break, so that everyone can stop for a few minutes. Mediation is more flexible than a court hearing or arbitration. Taking breaks can help you earn respect – rather than resentment if you rush out – and can help you calm down if you’re upset. It’s also fine to take a break to get advice from a lawyer, friend or other advisor before you make final agreements. Just ask for some time to do so – either a few minutes, or several days or weeks if necessary. Mediators generally do not pressure you to make final decisions at the same time as you first discuss an issue.

4. Check Yourself

From time to time, ask yourself if you are using these skills. It’s easy to forget in the middle of discussing problems or upsetting issues. The mediator will try to help everyone in the mediation stay calm and focus on understanding problems and finding solutions. Just think about these four skills before the mediation and during the mediation, and you may do very well. ---------------------------------------------------------------------------------------------------------------------------- Bill Eddy is a lawyer, therapist and mediator. He is the author of several books and the President of the High Conflict Institute, which provides speakers and trainers on managing high-conflict disputes in several areas, including legal, workplace, healthcare, education and families. For more information go to: www.HighConflictInstitute.com.

1

LAWYER AND CLIENT PREPARATION TO

MAKE MEDIATION WORK

Chad A. Kepros

Bray & Klockau, P.L.C.

402 South Linn Street

Iowa City, Iowa 52240

Tel: 319-338-7968

Fax: 319-354-4871

I. Principles of mediation to share with clients.

A. Voluntary. Parties are required to “participate” in mediation which means they

must attend a mediation session. Graham v. Baker, 447 N.W.2d 397 (Iowa 1989).

A party need not mediate any issue and may terminate a mediation session at any

point for any reason.

B. Private. Only the people directly involved in the dispute and those who represent

them should be in attendance at the mediation. In most cases, this means the

parties and maybe their attorneys, but no one else, will be allowed to attend. In

some cases another significant person might need to be present for the client to

make decisions, but this is the exception and should be planned with the mediator

and agreed by the other side in advance.

C. Confidential. Statements made in mediation are made for purposes of

compromise and are not admissible in court. Statements made in mediation are

confidential and the mediator will generally not be compelled to testify or to

disclose the contents of any file he may maintain concerning the mediation

process. Each party can and should reveal the content of mediation to his or her

attorney even if the attorney is not present at the mediation.

D. Self-determination. The parties choose if and how to resolve their own conflicts.

The mediator may suggest possible solutions, but the parties choose.

E. Informed decision-making. Effective mediation requires that both parties be

informed of the facts of their case and the law that applies.

2

II. Ask for a waiver of the mediation requirement for cases not appropriate for mediation.

When screening for domestic abuse, the core question is not whether there has been an

instance of domestic abuse but whether or not the client is able to negotiate in his or her

self-interest. Can she state what she wants and needs during the mediation and is there

fear of later repercussions if she does so? The mediator will also screen for domestic

abuse, but the lawyer has the established relationship of trust with the client and is in the

best position to do so effectively.

III. Choosing the mediator and style of mediation.

A. Style of mediation: problems solving mediation vs. transformative mediation

1. Problem solving mediation: The role of the mediator is to facilitate

communication, keep the process on track, help each party define his or

her interests and goals, assist them in achieving resolution to their stated

objectives, and memorializing their agreements. There is a wide range of

problem-solving mediation styles from more facilitative to more direct and

evaluative.

2. Transformative mediation: The transformative approach does not

necessarily seek to solve the immediate problem. Rather, the goal is to

foster the parties’ empowerment and mutual recognition. This may pave

the way to an agreeable settlement but that is not the focus. This style of

mediation views conflict as an interactional crisis between parties, rather

than as a problem to be solved.

B. Choosing the mediator.

1. Choose someone who you personally know and have worked with.

2. Especially if financial issues are involved, you may want an attorney

mediator who devotes a significant portion of their practice to family law.

3. Look for a mediator who has common sense, good judgment, and gets

along well with others.

4. The devil is often in the details. Chose a mediator who is detail-oriented

and who will help parties move lofty ideas into specific and concrete

agreements.

5. Select a mediator who will do whatever works to solve the problem, rather

than being bound to a particular style or mediation approach.

3

C. Settlement Directive Caucus Mediations.

1. Caucus-style mediations with attorneys present can be extremely effective

at settling cases, especially when done close to trial.

2. These mediations usually take longer, and are therefore more costly, but

provide some advantages over other forms and may provide the greatest

chance of a comprehensive settlement.

3. The parties’ individual attorneys are an integral part of a caucus mediation.

When the mediator is present, the attorney is able to provide immediate

information and legal advice as proposals are discussed. When the

mediator is with the other side, the attorney is able to continue to work

through the issues with the client and plan for other options to solve the

problems at hand. In a caucus-style mediation the lawyer also serves an

important role in calming and re-focusing the client as the client deals with

the stress and anxiety that comes with making hard and final decisions.

4. Make sure you trust your mediator to keep confidences between rooms.

You should be able to fully share information and positions with the

mediator throughout the process and be confident that the mediator will

only share that information with the other side that you authorize.

5. Understand that the mediator may spend more time in one room or the

other. This is nothing to be concerned about – the mediator is spending

the time that is necessary to work through the issues so that the next step

toward resolution can be taken.

D. Attorney attendance.

1. It is not always necessary for attorneys to be present for the mediation to

be effective, but attorney presence can be very useful. Hesitate to select

any mediator who does not allow or discourages attorneys from being

present.

2. If you want to be present for the mediation, notify the other side and the

mediator well in advance – don’t expect just to show up. Understand that

the mediation may have to be rescheduled so that both parties’ attorneys

can attend.

3. Often it is most effective to use a caucus-style when attorneys are present.

Regardless of what style is used, attorneys who attend mediation should

support, rather than fight, the process. Mediation should be seen as a

confidential and friendly forum in which opinions, ideas, and facts can be

4

exchanged without posturing.

4. The presence of attorneys gives the mediator more freedom to provide

information, direct the mediation, push settlement, and if desired, be more

evaluative of the parties’ positions.

5. One of the barriers to successful resolution is that the right people are not

at the table. Lawyers play an important role in the divorce and need to be

part of the settlement process – at least before and after the mediation and

ideally during it.

IV. Preparing the client for successful mediation: Inform and advise.

A. Determine the client’s goals. What does the client need and want and which

needs and wants have priority?

B. Provide information on the law, including the basic legal vocabulary.

C. Develop and document the facts. The facts needed for trial are the same facts

needed for effective mediation.

D. Supply the facts to the other side in advance of the mediation. No smoking guns

at mediation.

E. Encourage parties participating in mediation to give everything and show what

they know.

F. Provide the client with a realistic view of the range of likely outcomes. Mediators

help parties clearly state their goals and interests in mediation; while they may do

so, it is not their job to challenge unrealistic goals.

G. Assist the client in developing affirmative options to solve the problems.

H. Help the client understand the inter-relationship between issues, such as property

and spousal support.

I. Help the client keep unrelated issues separate, such as child custody and property.

J. Give the client a basic understanding of the mediation process and dispel any

myths or misconceptions the client may have about mediation.

K. Encourage the client to make the mediation useful.

5

V. What to send with the client. A good mediation notebook for the client should include:

A. Financial affidavit.

B. Stipulation of Assets and Liabilities and Pretrial Statement, if a pretrial conference

has previously been held.

C. Representative paystubs and tax returns, if child support or spousal support is at

issue.

D. Property spreadsheets showing proposed distributions of assets and liabilities.

E. Calenders for custody/visitation schedules.

F. Settlement proposals, including a working settlement agreement if one exists and

has been shared with the other side.

G. Supporting financial documents. Better to have it and not need it than to need it

and not have it.

VI. After the mediation.

A. Draft the agreement quickly and get it signed. If the attorneys are present at the

mediation consider bringing a draft of the agreement to be revised and signed

during the mediation.

B. Try not to cherry-pick the “good” agreements reached and undo the “bad”

agreements.

C. In drafting the agreement, fill in the missing gaps in a sensible way.

D. If the client changes his or her mind about any agreement reached in mediation,

tell the other side right away.

VII. Attitudes for effective mediation.

A. Focus clients on their interests, rather than their positions.

B. Help clients separate emotions from the business of their case. Mediation is not

only a place to vent – it’s a place to solve problems.

C. Do not expect the mediator to convince the client to settle or to deliver the bad

news to the client that his or her position is unreasonable. The mediator might do

so to a limited extent, but the attorney has that primary responsibility.

D. Do not tell the client to just show up and meet the mediation requirement. There

is almost always something that can be accomplished in mediation and it is not

helpful to put up additional barriers to problem-solving.

E. Keep money and kids separate when preparing clients for mediation.

F. Do not blame the mediator for the agreements reached. The mediator directs the

process, but the parties choose whether and how to agree. If the client reaches

agreements in mediation that the attorney believes are unwise, it often means that

the attorney did not adequately prepare the client for the mediation or that the

client simply does not agree with the attorney’s advice.

G. Focus clients on talking to their spouse, not the mediator. There is little value in

convincing the mediator and the attempts by one party to convince the mediator

often make the other party suspicious of the neutrality of the process and less

likely to agree.

1

TOP TEN THINGS YOUR MEDIATOR WANTS LAWYERS AND CLIENTS TO DO TO MAKE MEDIATION WORK

Lora L. McCollom

McCollom Law Firm, PLLC 4401 Westown Parkway, Suite 208

West Des Moines, IA 50266 (515) 974-6500

[email protected]

One of the first things that you, as a lawyer, can do to make mediation work for your clients is to change your mindset from litigation mode to settlement mode. You also need to help your clients find this mindset. As you know, the purpose of mediation for a neutral third party to help clients reach an agreement, which is not always as easy as it sounds. The mediator’s only job, regardless of the style of mediation s/he conducts, is to help your client settle a dispute. Mediation involves compromise, not going home if your client doesn’t get his or her way on every issue. Another thing that lawyers need to remember as they prepare for mediation of most family-law matters is that the guiding principle is always the best interests of the child(ren). This is a difficult and nebulous concept, and it is occasionally at odds with your client’s desires. Many clients have never been through a family law legal proceeding before, and they are looking to you for guidance on how to reach the best possible solution….and this means telling them when they have unreasonable expectations. The following list is based upon the premise that you absolutely, positively MUST meet with your client before mediation. The best way to insure a successful mediation, much like the best way to insure a successful trial, is to meet with your client and to prepare in advance. Obviously, you probably don’t need the amount of preparation that a trial requires, but there are certain things that are “mediation musts,” which I respectfully submit include the following: 10. KNOW THE LAW This sounds like a simple premise, and it is…..but many people ignore it. You don’t have to be able to cite case law, but know what the rules are for calculating a post-secondary education subsidy, or what the factors are that the court examines in making an award of physical care. Know what you can and can’t deduct from income for child support purposes.

2

Specifically, review the case law and the analysis when shared care is an issue. Be prepared to discuss, but not argue, your client’s position. 9. DO YOUR HOMEWORK In other words, have all of the information you will need…have it in your possession and bring it to mediation. This includes pay stubs, health insurance information, employment agreements, monthly statements showing regular monthly expenses (mortgage payments, car payments, etc.) If you have prepared an Affidavit of Financial Status or a Child Support Guidelines Worksheet, make sure you have the supporting documentation. If you don’t have it, the other side will definitely ask for it at the mediation. Also, if there is a 401(k), pension, or other retirement account(s) at issue, make sure you have a copy of the plan documents and understand how the plan allows for division of said accounts. 8. PLAY NICE IN THE SAME SANDBOX Exchange necessary financial information in advance, even if the other side does not make a formal discovery request. There is no reason not to provide tax returns, income information, insurance information, retirement account balances, etc. before mediation. Exchanging this documentation in advance provides both sides with the information necessary to accurately calculate child support and to prepare to address other financial issues. 7. DON’T FORGET PEOPLE WHO CAN HELP YOU If there is a particular financial planner or accountant, make sure s/he is available to consult if necessary. Also, if there is a Guardian Ad Litem, child’s attorney, Parenting Coordinator, or other professional involved in the case, invite them to the mediation or have them available by phone. They may be able to provide the last piece to the settlement puzzle. 6. KEEP IT AS SIMPLE AS POSSIBLE Try to talk with the other attorney before the mediation to see if there are any issues upon which you agree. If there are things you agree upon, such as joint legal custody, alternating tax deductions, or selling the marital home, confirm agreement on these issues - which will help streamline the mediation. Bring a list of agreed-upon issues to mediation, as it will set the tone of the mediation….if the parties have already agreed upon some issues, there is no reason not to keep moving forward with the agreement process. 5. EDUCATE YOUR CLIENT Explain the mediation process to your client. Help them understand the mediator’s role, the fact that it is a voluntary process (even if the court orders you to attend), and the benefits of reaching an agreement through mediation. Also discuss some of the basic family law “lingo” with them

3

so that they understand the difference between legal and physical care or the difference between a defined benefit plan and a defined contribution plan. Make sure the client understands that s/he will be responsible for payment for a portion of the mediator’s fees as well. 4. MAKE A LIST AND CHECK IT TWICE Make a list of all issues to address at mediation. Discuss options with your client, including a range of possible outcomes. Be creative and think outside the box, if necessary, but help your client have reasonable expectations. If your client has a non-traditional work schedule, discuss parenting plans that allow the children to spend time with the parent when s/he is not working. If your client has significant financial assets, discuss possible ways to equitably divide the assets considering the possible tax consequences (and see #7 above). Double-check your list during mediation to make sure that you don’t miss anything. 3. PREPARE A PROPOSAL When you meet with your client, prepare a proposal on the issues to address at mediation, whether it is a written proposal or a proposed stipulation. It is much easier for many people to negotiate when they have a document to work from, especially when it comes to things like holiday parenting schedules. Also, feel free to bring your laptop to make adjustments to the proposal as needed when we reach agreements. 2. DON’T LOSE THE FOREST FOR THE TREES When you meet with your client before the mediation, prioritize the issues that you will discuss at mediation. If your client doesn’t care what happens to the house but feels strongly about a particular parenting arrangement, then use that knowledge during the negotiation. Don’t lose track of the issues and spend an inordinate amount of time discussing what to do with the air compressor if your client’s priority is parenting arrangements. 1. HONESTY IS THE BEST POLICY You absolutely, positively must be honest with your client when assessing settlement possibilities, both before and during mediation. Again, this sounds easier than it can sometimes be. As an attorney, your job is to represent your client, and that means helping him/her get the best possible outcome. Taking all of the facts into consideration, think about what a court would do and weigh the risk of letting a court make that decision.

Business Valuation: What is Hiding Behind the Curtain?

3:30 p.m.-4:15 p.m.

Presented byAl Ryerson Jim NalleyBCC Advisers BCC Advisers1707 High Street 1707 High StreetDes Moines, IA 50309 Des Moines, IA 50309Phone: 515-282-8019 Phone: 515-282-8019



1

1707 High Street | Des Moines, IA 50309 | (866) 787-8019 | www.bccadvisers.com

Iowa State Bar Association

Family Law Seminar

Al Ryerson Jim NalleyCPA/ABV, CFF, ASA CPA/ABV, CFF, CVA

October 24, 2013


Business Valuation:

What is Hiding Behind the Curtain?

Tips to Guide You Through the Haunted Forest

2


Alphabet Soup

CPA

ABV

CFF

ASA

AM

CVA

AVA

CFFA

ABAR

CBA

CFA

AICPA

ASA

NACVA

IBA


Credentials Comparison Chart

3


How Do You Select a Valuation Professional?

Develop a Long-term Relationship with Experts with Whom You are Comfortable


How Do You Select a Valuation Professional?

NOT Your Client’s Regular CPA!

IndependentExpert

4


Definition of Value for Marital Dissolution

Fair Market Value

“the price, expressed in terms of cash or cash

equivalents, at which property would change hands

between a hypothetical willing and able buyer

and a hypothetical willing and able seller, both

acting at arms length in an open and unrestricted

market, when neither is under compulsion to

buy or sell and when both have reasonable

knowledge of the relevant facts.”


Levels of Value

Strategic / Synergistic

Control Value

Financial Control

Value

Marketable Minority

Level

Non-Marketable

Minority Level

Price reflects economic benefits

of synergies between buyers and

sellers. Price to a specific buyer.

Financial buyer – Publicly-traded

equivalent value of either a

controlling or non-controlling

interest.

Fair market value of a minority

interest. (Lacks control and a

public market.)

5


Key Elements

Define the engagement

Gather the information

Analyze the relevant information

Arrive at a conclusion

Write the report


Approaches to Consider

Asset Based Approach

6




Theoretically, add the fair market value of ALL assets and deduct the fair market value of ALL liabilities

Seems simple enough, right?




Generally provides the minimum value of an ownership interest. That is, a business owner would generally NOT be willing to accept a price less than the sum of all the assets reduced by all the liabilities.

7



Market Approach



Market Approach

Guideline Public Company Method

8



Market Approach

M & A Transaction Method



Income Approach

Finance 101 – The value of a business interest is the present value of the future cash flows to be received…..

9



Income Approach

Should cash flows be based off of future projected cash flows –DISCOUNTED FUTURE CASH FLOW METHOD?

OR

Should cash flows be based off of past results – CAPITALIZED CASH FLOW METHOD?



Income Approach

Consensus for marital dissolutions is:Historical cash flows

BUT

Cash flow used SHOULD BE representative of what the sustainable cash flow for the business will be going forward.

10


Capitalized Cash Flow Method

What is the difference between “Earnings” and “Cash Flow”



Start with Normalized After-tax Earnings

Add Back: Depreciation & Amortization

Deduct: Capital Expenditures

Deduct: Change in Working Capital

Equals: Normalized After-tax Cash Flow

(Also sometimes called “Normalized Free Cash Flow”)

11



What are “Normalized Earnings”?

Probably one of the most litigated business valuation issues in marital dissolution actions!


Normalized Earnings

“Normalized Earnings” could generally be defined as the earnings generated by a business after adjustments for one-time (or non-recurring) items and recurring transactions that do not take place at an arms length value.

12


Normalized Earnings

What are some one time (or non-recurring) items that might need to be adjusted?

Professional fees

Asset sales

Insurance awards

Discontinued operations


Normalized Earnings

What are some recurring items that might need to be adjusted?

Compensation

Rents

Personal expenses

Depreciation

13


Common Errors in Valuation Reports

Failure to Follow the Standard of Value



Inconsistencies

14



Arithmetic Errors



Insufficient Support

15



Overreliance on Rules of Thumb



Inadequate Data

16



Failure to Normalize Financial Results



Failure to Consider Guideline Companies

17



Failure to Assess Reasonableness of the Final Result


What Should a Business Valuation Cost?

IT

DEPENDS

18


What Should a Business Valuation Cost?

Hourly Rate


Business Valuation Report Review Checklist

19


Credentials Comparison Chart


Thank You

for attending

ISBA - 2013Family Law Seminar

WE WELCOME YOUR QUESTIONS

20

Alan D. Ryerson, CPA/ABV, CFF, ASA James D. Nalley, CPA/ABV, CFF, CVA

[email protected] [email protected]

(515)777-7067 (515)777-7068

1707 High Street

Des Moines, IA 50309

www.bccadvisers.com

Contacts

Basic Discovery How to Draft Effective Discovery in a Dissolution Case

4:15 p.m.-5:00 p.m.

Presented byDavid Jungman

113 W. Iowa Greenfield, Iowa 50849Phone: (641) 743-6195



Friday Oct. 25

Family Law Update

8:00 a.m.-9:00 a.m.

Presented byJames M. Meade

1200 Valley West Drive, Suite 206-02West Des Moines, IA 50266

Phone: (515) 868-0163Fax: (515) 225-7546

E-mail: [email protected]


Friday, October 25, 2013Friday, October 25, 2013

ISBA FAMILY LAW SECTION

FAMILY LAW SEMINAR

FAMILY LAW UPDATE

October 25, 2013

Prepared by

James M. Meade

1200 Valley West Drive, Suite 206-02

West Des Moines, IA 50266

Phone: (515) 868-0163

Fax: (515) 225-7546

E-mail: [email protected]

FAMILY LAW UPDATE

Table of ContentsPage No.

I. DISSOLUTION OF MARRIAGE................................................................................................ 1

A. Procedural Aspects........ ................................................................................................... 1

1. Personal Jurisdiction.................................................................................................. 12. In Rem Jurisdiction .................................................................................................... 23. Subject Matter Jurisdiction. ........................................................................................ 24. Res Judicata/Issue/Claim Prelusion. ........................................................................... 35. Soldier’s and Sailor’s Relief Act. ............................................................................... 46. Control of Trial. .......................................................................................................... 47. Off the Record Communication.................................................................................. 5

8. Citation of Unpublished Appellate Decisions........................................................... 59. Default Judgment for Non-Compliance With Discovery. .......................................... 5

10. Elements of Common Law Marriage. ........................................................................ 5 11. Same Sex Marriage..................................................................................................... 5 12. Marital Tort: Invasion of Property. ............................................................................. 6 13. Law of The Case Doctrine. ......................................................................................... 7

B. Alimony........................................................................................................................... 7

1. Traditional Alimony. .................................................................................................. 72. Rehabilitative Alimony............................................................................................. 103. Reimbursement Alimony. ......................................................................................... 124. Alimony Termination. ............................................................................................. 135. Alimony Payment . ................................................................................................. 146. Alimony QDRO....................................................................................................... 157. Alimony Insurance/Security. ................................................................................... 158. Veterans Pension Available for Alimony................................................................. 159. Income Available for Alimony. ................................................................................ 16

10. Alimony and Property Division. .............................................................................. 16 11. Attorney Fees........................................................................................................... 16

C. Division of Property. ............................................................................................................ 17

1. Choice of Law. ......................................................................................................... 172. Factors in Equitable Division. .................................................................................. 183. Premarital Agreement. ............................................................................................. 214. Post-Marital Agreements. ........................................................................................ 235. Property Settlements Installment Terms. ................................................................. 236. Separate Property: Inherited or Gifted. .................................................................... 247. Premarriage Property. .............................................................................................. 268. Appreciation of Value of Separate Property. ............................................................ 289. Retirement and Pension Plans................................................................................... 2910. Division of Other Assets.......................................................................................... 33

i

Table of Contents (continued)Page No.

D. Child Support. ................................................................................................................ 36

1. Interstate Jurisdiction for Child Support Orders....................................................... 362. Child Support Guidelines. ........................................................................................ 363. Determination of Gross Income............................................................................... 384. Calculation of Guideline Net Income. ...................................................................... 455. Special Circumstances-Adjustment of Guideline Support. ..................................... 486. Other Child Support Issues. ..................................................................................... 517. Termination of Support Obligation. ........................................................................ 538. Post-Secondary Education Subsidy. ........................................................................ 539. Life Insurance........................................................................................................... 58

10. Court-Ordered Trusts. .............................................................................................. 5911. Disabled Adult Child................................................................................................ 5912. Medical Support. ...................................................................................................... 60

E. Child Custody and Visitation. ........................................................................................ 61

1. Jurisdiction of the Court. .......................................................................................... 612. Custody of Embryos. ................................................................................................ 633. Joint Custody........................................................................................................... 644. Determination of Primary Caretaker ....................................................................... 675. Tortious Interference with Custody. ......................................................................... 756. Appointment of Guardian Ad Litem or Child’s Attorney. ....................................... 757. Visitation & Other Rights & Responsibilities of Joint Custody. ............................. 75

II POST DECREE PROCEEDINGS.............................................................................................. 76

A. Post Decree Motions. .................................................................................................... 76

B. Appeal. .......................................................................................................................... 82

1. Jurisdiction During Appeal. ................................................................................... 822. Jurisdiction After Appeal. ...................................................................................... 823. Support During Appeal. ......................................................................................... 824. Appellate Waiver Doctrine...................................................................................... 825. No Plain Error Rule................................................................................................. 836. Attorney Fees on Appeal. ........................................................................................ 837. Final Action............................................................................................................ 83

C. Contempt Proceedings................................................................................................... 83

1. Statutory Provisions. ............................................................................................... 832. Contempt Defenses. ................................................................................................. 843. Right to Court-Appointed Attorney......................................................................... 854. Burden and Degree of Proof .................................................................................. 855. Punishment for Contempt ..................................................................................... 85

ii

Table of Contents (continued)Page No.

D. Modification of Decree. ................................................................................................ 86

1. Personal Jurisdiction Over Parties. ......................................................................... 862. Modification Venue. .............................................................................................. 863. Substantial Change in Circumstances: A Warning. ................................................ 874. Property Settlement Not Modifiable. ...................................................................... 875. Alimony Modification. ........................................................................................... 886. Child Support Modification. ................................................................................... 88

7. Custody Modification. ........................................................................................... 928. Visitation Modification.......................................................................................... 96

III. ACTIONS TO COMPEL SUPPORT....................................................................................... 97

A. Paternity Proceedings. ................................................................................................. 97

1. Methods to Establish Paternity. ............................................................................. 972. Limitations on Actions............................................................................................ 973. Proof. ..................................................................................................................... 974. Right of Putative Father to Establish Paternity. ...................................................... 985. Setting Aside Paternity Order. ............................................................................... 986. Attorney Fees in Paternity Proceedings. ................................................................. 997. False Allegation of Paternity: Actionable Fraud. .................................................... 99

B. Uniform Interstate Family Support Act. ..................................................................... 100

1. Uniform Support of Dependents Law Replaced. ................................................... 1002. Statute of Limitations............................................................................................ 1013. Retroactive Support. .............................................................................................. 1014. Both Parents are Liable.......................................................................................... 1015. Enforcement Quashed/Denial of Child Contact..................................................... 101

IV. JUVENILE LAW: . ................................................................................................................. 102

iii

FAMILY LAW UPDATE

Table of New Cases

Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013). .......................................................................... 63

In re Marriage of Ambrosy, No. 2-751 /12-0492 (Iowa App. 2012). .................................................. 19

In re Marriage of Anderson, No. 2-777 / 12-0281 (Iowa App. 2012).................................................. 11

In re Marriage of Barnhart, No. 386/12-2251 (Iowa App., 2013)). .................................................... 95

In re Beattie, No. 3-372/12-1524 Iowa App., 2013))............................................................................. 16

In re Berger, No. 3-148/12-1389 (Iowa App. 2013). ........................................................................ 9, 36

In re Marriage of Bilden, No. 2-346/11-1856 (Iowa App. 2012). ........................................................ 46

In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013)...................................................................... 11, 25

Brooks v. Wear, No. 2-247/11-1539 (Iowa App. 2012). ......................................................................... 4

In re Marriage of Cerwick No. 3-300/12-1188 (Iowa App., 2013))..................................................... 66

Cline v. Swanson, No. 3-375/12-1575 (Iowa App., 2013)). ................................................................ 66

In re D.A.B.P., No. 2-689 /12-0237 (Iowa App. 2012).......................................................................... 74

In re Marriage of Doubek , No. 2-942 / 12-0628 (Iowa App. 2013). .................................................. 89

Fernander v. Wenner, No 2-311/11-1972 (Iowa App. 2012). ............................................................. 64

In re Marriage of Friedman, No. 3-274/12-1978 (Iowa App., 2013)). ................................................ 60

Gartner v. Iowa Dep't of Pub. Health, No. 12-0243(Iowa, 2013)........................................................ 6

In re Marriage of Geisinger, o. 2-902 /12-0280 (Iowa App. 2012)...................................................... 57

In re Marriage of Gibson , No. 2-872 /12-0494 (Iowa App. 2012). ..................................................... 55

In re Marriage of Griffith , No. 2-1192-0801 (Iowa App., 2013). ....................................................... 16

In re Marriage of Hansen, No. 2-500 /11-1249 (Iowa App. 2012). ..................................................... 88

In re Harter, No. 3-130/12-0765 (Iowa App., 2013))............................................................................. 8

In re Hinshaw, No. 3-416/12-1783 (Iowa App., 2013)........................................................................ 95

iv

FAMILY LAW UPDATETable of New Cases (Continued)

In re Marriage of Huseman, No. 2-474/No. 12-0303 (Iowa App. 2012)............................................. 92

In re Marriage of Juhl, No. 2-465 /11-1294 (Iowa App. 2012). .......................................................... 13

In re Marriage of Keuter, No. 2-864 /11-1931 (Iowa App. 2013)..................................................... 95

In re Kilfoyle, No 3-380/12-1775 (Iowa App., 2013)............................................................................ 96

In re Marriage of Kinser, No. 2-166/No. 11-0169 (Iowa App. 2012). .......................................... 17, 27

In re Leuer, No. 3-346/12-1663 (Iowa App., 2013). ........................................................................... 96

In re Marriage of Locke, No. 2-876 / 12-0595 (Iowa App. 2012). ........................................................ 9

In re Marriage of McCreedy, No. 2-512 / 11-1835 (Iowa App. 2012)................................................ 10

In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013). ..................................................... 18, 49

In re Marsh, No. 3-231/12-1573(Iowa App. 2013).............................................................................. 81

Maruna v. Peters, No. 2-945/12-0759 (Iowa App., 2013).................................................................... 73

In re Marriage of Nevins, No. 2-544/11-1541 (Iowa App. 2012). ................................................. 21, 27

In re Marriage of Nurre, No. 3-065/12-0998 (Iowa App. 2013). ........................................................ 11

In re Marriage of Payne, No. 2-976 /12-0842 (Iowa App. 2013). ................................................. 28, 36

In re Marriage of Pearson-Williams, No. 2-852 / 12-0631 (Iowa App. 2012). .................................. 12

In re Pelletier, No.30378/12-1704 (Iowa App. 2013). .......................................................................... 65

In re Marriage of Pereault, No. 2-913/12-1178 (Iowa App., 2013). ................................................... 61

In re Reich, No. 3-584/12-1994 (Iowa App., 2013). ........................................................................... 11

In re Marriage of Reineke , No. 3-370/12-1375 (Iowa App. 2013).. ................................................... 31

Reis v. Stowers, No. 2-398/11-0790 (Iowa App. 2012)......................................................................... 35

In re Marriage of Renes, No. 3-070/12-1136 (Iowa App., 2013). ...................................................... 51

In re Marriage of Retz, No 2-324/11-0447 (Iowa App. 2012). ...................................................... 33, 39

v

FAMILY LAW UPDATETable of New Cases (Continued)

In re Marriage of Reynolds, No. 3-151/12-1456 (Iowa App. 2013)..................................................... 25

In re Marriage of Rhinehart, No. 2-1068 /12-0287 (Iowa App. 2013)............................................ 7, 34

In re Marriage of Richardson, No. 3-512/12-1461 (Iowa App., 2013)............................................... 97

In re Marriage of Richter, No. 2-783/12-0392 (Iowa App. 2012). ................................................ 10, 46

In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013)................................................ 71, 84

In re Marriage of Ritchie No. 2-556/11-2029 (Iowa App. 2012))........................................................ 25

In re Marriage of Sawvel, No. 2-809 /12-0448 (Iowa App. 2012). ...................................................... 46

In re Marriage of Schenkelberg, 824 NW2d 481 (Iowa 2012). ...................................................... 9, 17

In re Marriage of Sisson, No. 3-066/12-1023 (Iowa App., 2013)......................................................... 88

In re Marriage of Snow, No. 2-596 /11-1030 (Iowa App. 2012).......................................................... 48

State v. Iowa Dist. Court for Warren Cnty. No. 11-2031(Iowa 2013). ............................................ 102

In re Marriage of Terry, No. 2-347/11-1903 (Iowa App. 2012). ................................................... 30, 40

In re Marriage of Wahner, No. 2-514/11-1913 (Iowa App. 2012). ..................................................... 32

Ward v. Robinson, No. 3-153/12-1518 (Iowa App., 2013)................................................................. 99

In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013). ................................................ 8, 71

In re Marriage of Williams, No. 30414/12-1682 (Iowa App., 2013). ................................................. 20

vi

FAMILY LAW UPDATE

Prepared byJames M. Meade

1200 Valley West Drive, Suite 206-02West Des Moines, IA 50266E-mail: [email protected]

(515) 868-0163

I. DISSOLUTION OF MARRIAGE

A. PROCEDURAL ASPECTS

1. Personal Jurisdiction

The constitutional standard for determining whether a state can enter a bindingjudgment against a non-resident under the principles of due process adopted byI.R.C.P. 56.2 is "...(whether) a defendant has certain minimum contacts with theforum state such that the maintenance of the suit does not offend 'traditionalnotions of fair play and substantial justice.'...Kulko v. California Superior Court,436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97 (1978) ... (W)e must look to 'some act'by which the defendant purposefully avails ... (her)self of the privilege ofconducting activities within the forum state.' Kulko, 436 U.S. at 94, 98 S.Ct. at1698." Egli v. Egli, 447 N.W.2d 409, 411 (Iowa App. 1989).

a. To implement the principles of the Kulko case, Iowa uses a five-factortest, the first three being the most important:

(1) the quantity of the contacts;

(2) the nature and quality of the contacts;

(3) the source and connection of the cause of action with thosecontacts;

(4) the interest of the forum state;

(5) the convenience of the parties.

Hodges v. Hodges, 572 N.W.2d 549 (Iowa 1997); see also Larsen v.Sholl, 296 N.W.2d 785 (Iowa 1980).

b. State ex rel. Houk v. Grewing, 586 N.W.2d 224 (Iowa App. 1998). Thedetermination of whether a state court has personal jurisdiction over theresident of another state is a two-step process: (1) Iowa must havesufficient minimum contacts with the out-of-state resident to satisfy theDue Process requirements of the federal constitution. In determiningwhether a party’s contacts with Iowa are sufficient to confer jurisdiction,the Kulko five-factor test is applied. After the five-factor test is satisfied,the Court must also be satisfied that the Respondent was given at least thefundamental elements of procedural due process: reasonable notice of theproceeding and an opportunity to be heard.

mailto:[email protected]

c. “The critical focus in any jurisdictional analysis must be the relationship amongthe defendant, the forum, and the litigation. ... This tripartite relationship isdefined by the defendant’s contacts with the forum state, not by the defendant’scontacts with residents of the forum.” Meyers v. Kallestad, 476 N.W.2d 65, 68(Iowa 1991). See also In re Marriage of Crew, 549 N.W.2d 527, 529 (Iowa 1996).

2. In Rem Jurisdiction

a. Pennoyer v. Neff, 95 U.S. 714 (1877) and Williams v. North Carolina, 317 U.S.287 (1942) established that Due Process does not require a state court to havepersonal jurisdiction over an individual to adjudicate the civil status and capacitiesof its residents. Thus, a state may grant a divorce to a resident or determinecustody or parental rights of resident children though the state has no significantcontacts with an out-of-state spouse or parent. See Bartsch v. Bartsch, 636 N.W.2d3 (Iowa 2001).

b. As indicated above, jurisdiction to grant a dissolution of marriage is not to betested by the minimum contacts standard of the Kulko case. The United StatesSupreme Court adopted the "Divisible Divorce Doctrine" in Estin v. Estin, 334U.S. 541, 549; 68 S.Ct. 1213, 1218; 92 L.Ed. 1561, 1568-69 (1948). The divisibledivorce doctrine recognizes the Court's limited power where the court has nopersonal jurisdiction over the absent spouse to grant a divorce to one domiciledin the state, but no jurisdiction to adjudicate the incidents of marriage, forexample, alimony and property division. See In re Marriage of Kimura, 471N.W.2d 869 (Iowa 1991) and Brown v. Brown, 269 N.W.2d 918 (Iowa 1978).

3. Subject Matter Jurisdiction

a. "Subject matter jurisdiction" is broadly defined as the power of the Court to hearand determine cases of the general class to which a particular case belongs. Lackof subject matter jurisdiction may be raised at any time and cannot be waived orvested by consent. In re Marriage of Russell, 490 N.W.2d 810 (Iowa 1992); In reJorgensen, 623 N.W.2d 826, 831 (Iowa 2001).

b. A court has the Common Law inherent equitable jurisdiction to take jurisdictionwhen the petition states a claim of paternity and requests for child custody andsupport. Bruce v. Sarver, 472 N.W.2d 631 (Iowa App. 1991). The Sarver courtruled that the trial court should not have dismissed because paternity had neverbeen established when the putative father petitioned for custody or visitation.

c. However, in In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004), the SupremeCourt stated that the rights and remedies of Iowa Code Chapter 598, the dissolution of marriage statute, are not available to unmarried persons. The courtalso has no broad equitable powers to divide property accumulated by unmarriedpersons based on cohabitation. Instead, to secure subject matter jurisdiction, theparties must allege a recognized legal theory outside marriage to support propertyclaims between unmarried cohabitants, including claims of contract, unjustenrichment, resulting trust, constructive trust, and joint venture.

-2-

d. In re Estate of Carlisle, 653 N.W.2d 368 (Iowa 2002) A separate maintenancedecree does not cut off the rights of a spouse under Chapter 633. Section 598.28which provides that all applicable provisions of Section 598.20 specificallyprovides that the forfeiture of spousal rights only occurs A[w]hen a dissolution ofmarriage is decreed.

e. Schott v. Schott, 744 N.W.2d 85 (Iowa 2008) Two women formed a relationshipand adopted Jamie’s two children. When the relationship ended, Heather soughtvisitation and offered to support the children. The trial judge dismissed Heather'spetition on his own motion for lack of subject matter jurisdiction. The SupremeCourt reversed and remanded the case, finding that since neither adoption wasappealed, the judgements are final. See In re Estate of Falck, 672 N.W.2d 785,792 (Iowa 2003) . The adoption could not be collaterally attacked because thedistrict court did not lack jurisdiction and not parent attacked the judgments ondue process grounds. See In re Infant Girl W., 845 N.E.2d 229, 246(Ind.Ct.App.2006). The Supreme Court refused to decide whether second parentadoptions are permissible in Iowa for purposes of this appeal.

4. Res Judicata/Issue/Claim Preclusion

a. Issue Preclusion or Collateral Estoppel serves two purposes: to protect litigantsfrom the vexation of relitigating identical issues and to promote judicial economy. State ex rel. Casas v. Fellmer, 521 N.W.2d 738 (Iowa 1994). To establish IssuePreclusion, four prerequisites must be established: (1) the issue must be identical;(2) the issue must have been raised and litigated in the previous action; (3) theissue must have been material and relevant to the disposition of the previousaction; and (4) the previous determination of the issue must have been necessaryand essential to the earlier judgment. See also In Re Marriage of Van Veen, 545N.W.2d 263 (Iowa 1996) and Audas v. Scearcy, 549 N.W.2d 520 (Iowa 1996).

b. The Supreme Court has ruled that issue preclusion has not been eliminated as afactor in reexamining paternity cases. Section 600B.41A, Code of Iowa,specifically provides for actions to overcome paternity that has been previouslylegally established. There is no corresponding statutory provision to establishpaternity when a person has previously been found not to be the biological father. In re Marriage of Rosenberry, 603 N.W.2d 606 (Iowa 1999).

c. In re Marriage of Ginsberg, 750 N.W.2d 520 (Iowa 2008). The Supreme Court

ruled that claim preclusion does not prevent the enforcement of the decreeprovision which required John to pay a debt owned to Tanya’s father in anunspecified amount. The“hold harmless” provision of the decree was theequivalent of an indemnification contract where one party promises to reimburseor hold harmless another party for loss, damage, or liability.” Maxim Techs., Inc.v. City of Dubuque, 690 N.W.2d 896, 900 (Iowa 2005). When an indemnificationobligation is breached, further proceedings are often needed to determine the amount the person, who is secondarily liable, has been compelled to pay as aresult of the indemnitor’s negligence or other wrong.” Howell v. River Prods. Co.,379 N.W.2d 919, 921 (Iowa 1986).

-3-

5. Soldier’s and Sailor’s Civil Relief Act

In re Marriage of Grantham, 698 N.W.2d 140 (Iowa 2005). The Soldiers and Sailors CivilRelief Act (SSCRA), 50 U.S.C. app. 501-591, which provides for a stay of proceedingsat any stage thereof any action or proceeding in any court in which a person in militaryservice is involved, is not a complete bar to litigation. Here, the Court found no substantialprejudice to the serviceman’s rights.

6. Judicial Control of Trial

a. Fair Opportunity to Resolve Dispute. A trial judge’s discretion to manage the trial isalways constrained by due process principles, requiring all litigants in the judicial processto be given a fair opportunity to have their disputes resolved in a meaningful manner.Judges should impose time limits only when necessary, after making an enlightenedanalysis of all available information from the parties. In re Marriage of Ihle, 577 N.W.2d64 (Iowa App. 1998).

In re Marriage of Harris, No. 12-1969 (Iowa 2013). During the two-year pendency ofthe dissolution action, Angela had five separate attorneys. After the latest continuance, thecourt advised Angela that she should retain representation for the trial soon. Nevertheless,she failed to do so until six days before trial; and the district court judge refused anothercontinuance. The financial and emotional strain of the litigation was taking its toll on boththe parties and their children. Given these circumstances, the Court of Appeals held thatAngela was largely responsible for any lack of preparation and any ineffectiveness in thepresentation of her case; Further delay, the court suggested, would leave the parties andchildren in a state of unnecessary and undesirable unrest. Iowa Rule of Civil Procedure1.911(1) provides that the district court may allow a continuance "for any cause notgrowing out of the fault or negligence of the movant, which satisfies the court thatsubstantial justice will be more nearly obtained." Angela was clearly at fault and negligentand not entitled to a further continuance. See Michael v. Harrison Cnty. Rural Elec.Coop., 292 N.W.2d 417, 419 (Iowa 1980).

b. Time Limits. The trial court has broad discretion under the Iowa Rules of Evidence toexclude otherwise relevant and admissible evidence if the evidence’s probative value issubstantially outweighed by considerations of undue delay or waste of time. See Rules403 and 611. However, a court should impose time limits only when necessary, aftermaking an analysis of all available information from the parties. In Re Marriage ofThielges, 623 N.W.2d 232 (Iowa App. 2000).

c. Witness and Exhibit List. In Brooks v. Wear, No. 2-247/11-1539 (Iowa App., 2012), theCourt stated that a trial judge has inherent power to enforce the scheduling order. Fry v.Blauvelt, 818 N.W.2d 123 (Iowa 2012). The latest trial scheduling order did not state thatit required resubmission of the witness and exhibit list already filed. Nikie, a pro selitigant, filed a witness and exhibit list for an initial trial date that was then postponed, butdid not file a new list prior to the actual trial date. The Court ruled that the trial judgeabused his discretion when he did not allow Nikie to present any witnesses or exhibits attrial because she failed to file a new list. She should have been allowed to introduce theexhibits and call the witnesses disclosed on the original list. Wade had notice of thosewitnesses and exhibits for seven months, and therefore, would not have been prejudicedor surprised by their admission at trial. Nikie was prejudiced by the exclusion of thosewitnesses and exhibits. See Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000)

-4-

7. Off-the Record Communications

In re Marriage of Ricklefs, 726 N.W.2d 359 (Iowa 2007). The court and the lawyers are bestadvised to have all off-the-record conversations reported when those conversations turn to themerits of the controversy. See Iowa R. Civ. P. 1.903. If a party wants to appeal unreportedremarks, that party needs to establish the record, including any objections made, through a bill ofexceptions under Iowa Rule of Civil Procedure 1.1001 or a statement of evidence under Iowa Ruleof Appellate Procedure 6.10(3).”

8. Citation of Unpublished Appellate Decisions

The Iowa Supreme Court has amended Iowa Rule of Appellate Procedure 6.14(b) to permitunpublished opinions of Iowa Appellate Courts in briefs and legal arguments. However, theunpublished opinions shall not constitute controlling legal authority. A copy of the unpublishedopinion must be attached to the brief and shall be accompanied by a certification that counsel hasconducted a diligent search for and fully disclosed any subsequent disposition of the unpublishedopinion.

9. Default Judgment for Noncompliance with Discovery

a. A former wife had been prejudiced when former husband refused to respond to a requestfor production of documents and interrogatories for more than four months because plansfor a child’s education had to be made. Therefore, entry of a default judgment was anappropriate sanction for willful noncompliance with the discovery requests. In re Marriageof Williams, 595 N.W.2d 126 (Iowa 1999).

b. Fenton v. Webb, 705 N.W.2d 323 (Iowa App. 2005). Tammie failed to comply with manydiscovery requests and court orders for discovery; the trial court as a sanction for hercontempt, entered a default judgment granting Kenneth primary physical care. The Courtof Appeals approved the entry of default as a sanction See In re Marriage of Williams, 595N.W.2d 126, 130 (Iowa 1999) . However, the Court held that district court should not haveproceeded to established primary care without a hearing to confirm that custody toKenneth was in Rachel's interest. See Flynn v. May, 852 A.2d 963, 975(Md.Ct.Spec.App.2004), Iowa R. Civ. P. 1.973(2); and In re Marriage of Courtade, 560N.W.2d 36, 37 (Iowa Ct.App.1996).

10. Elements of Common Law Marriage

In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979). Three elements must exist tocreate a common law marriage: "(1) [present] intent and agreement . . . to be married by bothparties; (2) continuous cohabitation; and (3) public declaration that the parties are husband andwife." Winegard II, 278 N.W.2d at 510. The requirement of a present intent and agreement to bemarried reflects the contractual nature of marriage. However, an express agreement is not required.. The public declaration or holding out to the public is considered to be the acid test of a commonlaw marriage. There can be no secret common law marriage.

11. Same Sex Marriage

a. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). In a national landmark decision the IowaSupreme Court unanimously decided that the Iowa Code §595.2(1), which provides that“only a marriage between a male and female is valid”, is unconstitutional. The Equal

-5-

Protection Clause is an evolving, dynamic concept which must be determined by thestandards of each generation; and that in reviewing legislation under the Equal ProtectionClause, different levels of scrutiny are used by the courts. The Court determined that thehomosexual minority was entitled to the intermediate standard of scrutiny: the discrimina-tory classification must be justified because it is substantially related to an importantgovernmental objective. Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998).After examining each governmental objective cited by the County, the Court concludedthat Iowa Code Section 595.2 is unconstitutional because no constitutionally adequatejustification was given for excluding homosexuals from the institution of civil marriage.

b. Gartner v. Iowa Dep't of Pub. Health, No. 12-0243 (Iowa 2013). Iowa Code §144.13(2)requires the Iowa Department of Public Health to list as a parent on a child's birthcertificate the husband when a child is born to one of the spouses during the couple'smarriage. The Supreme Court found that statute could not be interpreted to include lesbiannon-birthing spouse because the legislature did not envision same-sex marriages when itenacted §144.13(2) , 39 years before Varnum was decided. However, Article I, section 1of the Iowa Constitution states: "All men and women are, by nature, free and equal . . . ."and Article I, section 6 does not permit a statute to violate equal protection guarantees. Varnum v. Brien, 763 N.W.2d 878. Equal Protection analysis first requires the Court todetermine if the “laws treat all those who are similarly situated with respect to the purposesof the law alike." Id. at 883. Here, the Gartners were similarly situated to marriedopposite-sex couples for the purposes of applying the presumption of parentage: They arein a legally recognized marriage; and married lesbian couples require accurate records oftheir child's birth, as do their opposite-sex counterparts. After determining that lesbiancouples with children born during their marriage have the same concerns as opposite sexcouples, Equal Protection analysis then requires proof that denial of the benefits of§144.13(2) to same-sex couples is justified by a substantial governmental objective. Here,the Court found that the state’s stated objectives: the accuracy of birth records, administra-tive efficiency and effectiveness, and the ensurance of financial support of the child werenot served by refusing to allow married lesbian couples to have the non-birthing spouse'sname on the birth certificate. The statute treats married lesbian couples who conceivethrough artificial insemination using an anonymous sperm donor differently than marriedopposite-sex couples who conceive a child in the same manner. Since the Department ofHuman Services was not able to identify a constitutionally adequate justification forrefusing to list on a child's birth certificate the non-birthing spouse in a lesbian marriage,the Supreme Court concluded that the language in §144.13(2) limiting the requirement to"the name of the husband" on the birth certificate is unconstitutional as applied to marriedlesbian couples who have a child born to them during marriage. However, instead ofstriking §144.13(2) from the Code, the Court ordered that it was preserved as to marriedopposite-sex couples, but required the Department to apply the statute to married lesbiancouples.

12. Marital Tort: Invasion of Privacy

In re Marriage of Tigges, 758 N.W. 2d 824 (Iowa 2008), Jeffrey installed secret video and audiotaping systems in the headboard of the parties' bed and other places around their home. The tortof invasion of privacy requires proof of an unreasonable intrusion upon a individual’s seclusion,and the intrusion must be highly offensive to a reasonable person. Restatement (Second) of Torts§652B cmt. c, d; Steersman v. Am. Black Hawk Broadcasting Co., 416 N.W.2d 685, 687 (Iowa1987). The Court approved the $22,500 award to Cathy as part of the dissolution action.

-6-

13. Law of the Case Doctrine.

In re Marriage of Rhinehart, No. 2-1068 /12-0287 (Iowa App. 2013). The law-of-the-case doctrine provides "a decision once made in a case constitutes the law of the particularcase, and will not, upon a subsequent appeal in the same case, be overruled or examined,however well satisfied the court may be that it is erroneous." Barton v. Thompson, 9 N.W.899, 899 (Iowa 1881); see also State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987). However, there are limitations to this principle. "The principle is not applicable, . . . if thefacts before the court upon the second trial are materially different from those appearingupon the first." Grosvenor, 402 N.W.2d at 405. Also, the doctrine may not apply whenthe law has changed through legislation or by judicial decisions. See Springer v. Weeks& Leo Co., Inc., 475 N.W.2d 630, 632 (Iowa 1991). Here, the Court found the doctrinedid not apply to correcting a $100,000 error in Deborah's IPERS account or a $60,000typographical error in Scott’s retirement account. Still, the Court did not consider the factsand law changes after the 2003 trial, including legislative changes relating to considerationof possible inheritances and Scott’s alleged fraud. In re Marriage of Locke, 246 N.W.2d246, 252 (Iowa 1976). The correction of the retirement account errors to consider theactual values in 2003 was proper because there were material differences in facts; and toignore the true values of the account would simply not be equitable.

B. ALIMONY

Alimony is awarded to accomplish one or more of three general purposes. Rehabilitative Alimonyserves to support an economically dependent spouse through a limited period of education andretraining. Its objective is self-sufficiency. An award of Reimbursement Alimony is predicatedupon economic sacrifices made by one spouse during the marriage that directly enhanced the futureearning capacity of the other. Traditional Alimony is payable for life or for so long as a dependentspouse is incapable of self-support. The amount of alimony awarded and its duration will differaccording to the purpose it is designed to serve. In re Marriage of Francis, 442 N.W.2d 59, 63-64(Iowa 1989). In Re Marriage of O’Rourke, 547 N.W.2d 864 (Iowa App. 1996).

1. Traditional Alimony

Traditional Alimony is an allowance to a former spouse in lieu of a legal obligation forsupport which will continue ordinarily so long as the dependent spouse lives and remainsunmarried. "When determining the appropriateness of alimony, the Court must considerthe (1) earning capacity of each party, and (2) their present standards of living and abilityto pay balanced against their relative needs. In re Marriage of Williams, 449 N.W.2d 878(Iowa App. 1989).

a. The property settlement and alimony are interrelated. The Court declined toaward alimony to wife because though her income alone might be insufficient topermit her to be self-supporting at a standard of living reasonably comparable tothat enjoyed during the marriage, the property settlement provided her withsufficient funds to support herself. In re Marriage of Grady-Woods, 577 N.W.2d851 (Iowa App. 1998).

b. In marriages of long duration, alimony can be used to compensate a spouse wholeaves the marriage at a financial disadvantage, especially where the disparity inearning capacities is great. In re Marriage of Clinton, 579 N.W.2d 835 (Iowa

-7-

App. 1998). See also In re Marriage of Weinberger, 507 N.W.2d 733 (Iowa App.1993); and In re Marriage of Craig, 462 N.W.2d 692 (Iowa App. 1990).

c. "We ignore gender in determining the alimony issue. To do otherwise would becontrary to Chapter 598 and constitutionally impermissive ... Orr v. Orr, 440 U.S.268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 318- 19 (1979)." Thehusband, 51, totally disabled, without a high school education, was granted $125per month alimony to supplement his $849 social security and $117 pensionbenefits. The wife's gross income was $2,060.00. In re Marriage of Miller, 524N.W.2d 442 (Iowa App. 1994). See In re Marriage of Bethke, 484 N.W.2d 604(Iowa App. 1992).

d. The “ . . . spouse with a lesser earning capacity is entitled to be supported, for areasonable time, in a manner as closely resembling the standards existing duringthe marriage as possible without destroying the right of the party providing theincome to enjoy at least a comparable standard of living as well.” In re Marriageof Hayne, 334 N.W.2d 347, 351 (Iowa App. 1983) (emphasis added); In reMarriage of Stark, 542 N.W.2d 260 (Iowa App. 1995).

e. In re Harter, No. 3-130/12-0765 (Iowa App., 2013). Steven's parents sold theircompany and placed their assets into a trust for the benefit of their children andgrandchildren. At the end of the 20-year marriage, Steven, 60, was retired, hadsome health problems, and had received $10,000 per month from the Trust forseveral years, though at the current rate of payout, the Trust may only last another11 years. Cindy, 46, was in good health and, like Steven, prior to the divorce, hadnot worked outside the home since 2002. At the time of the divorce, she workedat a full time at minimum wage—gross wages of around $1,421 per month. Thecourt reviewed the factors set out in Iowa Code. § 598.21A(1) and awarded Cindyrehabilitative spousal support of $3,500 per month for one hundred and twentymonths, with the payments to "immediately cease" upon the death of either partyor Cindy's remarriage. The Court reasoned that there is no likelihood that Cindycan achieve the lifestyle on her own that she has enjoyed during the marriage; andthat it was equitable to provide spousal support for Cindy. Steven's trust is aspendthrift trust and the corpus of the trust cannot be divided or assigned to Cindyas a marital asset. However, Steven's legal obligation to pay spousal supportunder the Decree and under Iowa law is personal. Once Steven has received adistribution from the trust, the money in his hands is subject to his obligation topay spousal support. The Court concluded that in the future, if the Trust paymentsare reduced or cease, a modification of the obligation is possible, but that thealimony was fair based on Steve’s $10,000 per month income.

f. In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013). James hadan annual income of$53,000: from his job at Boone Cable Works, plus his military pension, and disability payments. Tammy had two part-time jobs, andearned $12,516 annually. Tammy spent much of that time away from theworkforce, acting as the sole parent while James was serving in the military. Thedistrict court ordered James to pay Tammy "traditional alimony" in the amount of$250 a month until she dies, is remarried, or cohabitates with another male. TheCourt looked at the factors set out in Iowa Code 598.21A and affirmed the trialcourt award, noting that after working two part-time, minimum wage jobs,Tammy’s income was less than forty percent of the amount James earned.

-8-

g. In re Marriage of Locke, No. 2-876 / 12-0595 (Iowa App., 2012). At the end oftheir 33-year marriage, Robert was 53 and Perrian was 51. Both parties werehealthy and capable of full-time employment. Perrian did not work outside thehome during most of the marriage and cared for children and the home, whileRobert was the sole or primary breadwinner. Perrian did earn a college degree in2007. Robert is a high school graduate. Perrian could earned $29,000 annuallyas a dental office manager. Robert made $50,000 per year with benefits. TheCourt found that Perrian should receive traditional spousal support because of thedisparity of the parties' incomes, the length of the marriage, the distribution of themarital assets, and the standard of the parties' lifestyle during their marriage. SeeIowa Code § 598.21A(1); In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa2008); In re Marriage of Stark, 542 N.W.2d 260, 262-63 (Iowa Ct. App. 1995). Robert was ordered to pay alimony of $350 per month until he reaches the age ofsixty-five or dies, Perrian dies, or Perrian remarries, whichever happens first; andmonthly premiums for COBRA medical insurance for Perrian for a period of threeyears. The award of COBRA premiums for three years would give Perrianenough time to gain work experience or find a job with benefits.

h. In re Marriage of Schenkelberg, 824 NW2d 481 (Iowa 2012). Julianne madelittle to no income; Gary's wage and dividend income averaged $216,400; and hisdistributions from his Subchapter-S corporation averaged $236,750. Gary argued that the Subchapter-S distributions were not actually available to him. The Courtfound that Gary's actual average cash flow was more than $400,000 per year, not $208,000 as found by the district court. The Court also found that Julianne'sreasonable monthly expenses totalled $7,028; that the parties had agreed thatGary would be the breadwinner and Julianne would stay home. The comparativeincomes of the spouses is a significant factor for the court to consider whenevaluating an award of spousal support. In re Marriage of Hansen, 733 N.W.2d683 (Iowa 2007) At 57, with her education and employment history, Julianne willnever be able to support herself in the style that Gary did during the marriage. Gary received assets that will continue to generate substantial income even if heretires while Julianne’s will not. The Court of Appeals found that the alimonyshould not terminate at 70, but should be classic traditional alimony payable forJulianne's life or so long as a spouse is incapable of self-support." In re Marriageof Becker, 75,6 N.W.2d at 826

i. In re Berger, No. 3-148/12-1389 (Iowa App. 2013). Joe, 48, sought to reduce hispermanent alimony. His averaged income over the previous six years was$633,122 . However, he testified that sometime between the age of 50 and 55most obstetrician/gynecologists discontinue their obstetrics practices due the longhours and late night calls and experienced 1/3 reductions in their incomes. SinceJoe had not yet decided to retire from obstetrics and any possible incomereduction was speculative, the Court refused to reduce or alter his alimonypayments: five years of spousal support at $8000 per month and$6000 per monththereafter. If Joe alters his practice and experiences a substantial reduction ofincome, he may petition the court for a modification of the decree. See In reMarriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct. App. 1998)

j. The Factors: Courts consider many factors in determining if alimony is to beawarded and what amount should be awarded: the amount of the propertydivision [In re Marriage of Hardy, 539 N.W.2d 729 (Iowa App. 1995)]; theamount of child support under the decree [In re Marriage of Brown, 487 N.W.2d

-9-

331 (Iowa 1992)]; the earning capacity of each party [In re Marriage ofWegner, 434 N.W.2d 397, 398 (Iowa 1988)]; the wife's needs of support and thehusband's ability to pay toward that support [In re Marriage of Jones, 309N.W.2d 457, 460 (Iowa 1981)]; an agreement to waive alimony (if notinequitable) [In re Marriage of Handeland, 564 N.W.2d 445 (Iowa App. 1997)];and the statutory factors listed in Iowa Code section 598.21(3) [In re Marriageof Will, 489 N.W.2d 394 (Iowa 1992)].

2. Rehabilitative Alimony

Rehabilitative alimony serves to support an economically dependent spouse "through alimited period of re-education or retraining following divorce, thereby creating incentiveand opportunity for that spouse to become self-supporting." In re Marriage of Francis, 442N.W.2d 59, 63 (Iowa 1989).

a. "The dependent spouse's premarriage standard of living is irrelevant. Nowheredoes the Code direct the Court to restore an ex-spouse to his or her premaritalstandard of living. Rather, Iowa Code '598.21(3)(f) directs the Court to consider,among other factors, '[t]he feasibility of the party seeking maintenance becomingself-supporting at a standard of living reasonably comparable to that enjoyedduring the marriage..." In re Marriage of Grauer, 478 N.W.2d 83, 85 (Iowa App.1991).

b. In re Marriage of Becker, 756 N.W.2d 822 (Iowa 2008). The parties divided 3.3million dollars in the property settlement. Though the Court found that Laura’sproperty settlement would allow her to live comfortably, her earning capacity wasless than 10% of Fred’s. Therefore, instead of forcing Laura to spend her nest eggfor living and education expenses, the Court awarded three years of support of$8000 per month to allow Laura to complete her education and seven years at$5000 per month to give Laura time to develop her earning capacity.

c. In re Marriage of McCreedy, No. 2-512 / 11-1835 (Iowa App. 2012). After a21-year marriage Holly, 46, was in good health, had a Master’s in education, andearned $51,546.14. Robert, 45, was also in good health and earned $95,000 peryear. There is no absolute right to spousal support. In re Marriage of Spiegel, 553N.W.2d 309 (Iowa 1996) . Instead, alimony awards are based on the circum-stances of each case. Since both were relatively young and in good health andHolly was capable of supporting herself, she was denied traditional alimony eventhough Robert would be able to pay his debts faster, had more discretionaryincome, and would be able to invest more funds to his retirement account.

d. In re Marriage of Richter, No. 2-783/12-0392 (Iowa App. 2012). Traditionalalimony is ordinarily defined as spousal support which will continue ordinarily solong as the dependent spouse lives and remains unmarried, the Court here orderedJeffrey to pay Lisa “traditional” alimony of $2,200 per month for twelve years. The Court must consider the length of the marriage, the age and health of theparties, the parties' earning capacities, the levels of education, and the likelihoodthe party seeking support will be self-supporting at a standard of living compara-ble to the one enjoyed during the marriage. In re Marriage of Clinton, 579N.W.2d 835, 839 (Iowa Ct. App. 1998). Here, Jeff's monthly adjusted net monthlyincome was $10,525.61 and Lisa's was $2,847.94. Jeff's monthly expenses were$3,518, and Lisa's, with the four minor children living with her, were $6,707.68.

-10-

The parties were married for twelve years. Lisa was working part-time afterreturning from the parties' agreed upon sabbatical in 2007. The duration ofalimony gives Lisa time to become fully employed, as well as supplementing herincome to continue caring for the parties' children as was done during the parties'marriage.

e. In re Marriage of Anderson, No. 2-777 / 12-0281 (Iowa App., 2012). The courtmust balance each party's relative needs against their earning capacity, presentstandards of living, and ability to pay. In re Marriage of Williams, 449 N.W.2d878, 883 (Iowa Ct. App. 1989). See also In re Marriage of Hayne, 334 N.W.2d347, 351 (Iowa Ct. App. 1983). The court considered the length of the marriage(twenty-four years), age and health of the parties (Terri was 48 and in good health; Lee was 53 and taking blood pressure medication); and the distribution of maritalproperty (including a lump sum of $23,300 payable by Lee to Terri). In addition,the parties would be sharing the net proceeds of two properties required to be soldpursuant to the decree—providing some liquidity to both. The Court ordered Leeto pay rehabilitative spousal support in the amount of $850 per month for 5 years.

f. In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013). After a 21-year marriagethe court ordered Bryan to pay Tammy $500 per month in spousal support for 48months. During the last 9 years of the marriage Tammy worked only part-time inorder to care for the couple's children. She planned to quit work for 2 years toattend school full-time at a monthly cost of $750 to obtain a degree in elementaryeducation. As a teacher Tammy believed she could start at $27,284 per year. Inaddition to the planned education expenses, Tammy had permanent, significantmonthly medical expenses for diabetes and other conditions. Bryan was in goodhealth and earned $78,000 per year. The Court concluded that spousal supportshould be increase to $750 per month for 2 years in order to allow Tammy timeto return to school; and thereafter, spousal support should continue for anadditional 3 years at $500 per month so that she can secure a job, develop herearning capacity, and add to her retirement funds. See In re Marriage of Becker,756 N.W.2d 822, 827 (Iowa 2008) and In re Marriage of Schenkelberg, 824N.W.2d 481, 486.

g. In re Marriage of Nurre, No. 3-065/12-0998 (Iowa App. 2013). After a 5-yearmarriage, Mike was 42 and earned $74,000 at Whirlpool Amana and as amusician. Tara's employment history had been been inconsistent because she haddegenerative disc disease. Tara's medical condition would require COBRAinsurance at $385 per month. Though the marriage was of relatively shortduration, the Court held that Tara's inferior earning capacity and her physicallimitations justified an award of rehabilitative spousal support of $500 per monthfor forty-eight months. See In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa1998)

h. In re Reich, No. 3-584/12-1994 (Iowa App., 2013). Kim devoted almost adecade of service to the family plumbing business. She is not a plumber and willnot be able to take her skills to another plumbing business. Her education waslimited; and she was not likely in middle age to obtain further skills. She wasworking for$11.00 per hour as a bank teller. Rehabilitative spousal support is away of supporting an economically dependent spouse through a limited period ofre-education or retraining following divorce, thereby creating incentive andopportunity for that spouse to become self-supporting. In re Marriage of Becker,

-11-

756 N.W.2d 822, 825 (Iowa 2008). Here, the court ordered Bruce to pay Kimspousal support in the amount of $450 per month for five years. Though neitherpart had an abundance of assets or income, the court's award recognizes thesupport Kim provided to Bruce's business and helps Kim provide for herself whileshe establishes and advances her career.

3. Reimbursement Alimony

Where divorce occurs shortly after an advanced decree is obtained by one spouse,traditional alimony analysis would often work a hardship because, while they may havefew tangible assets and both spouses have modest incomes at the time of divorce, one ison the threshold of a significant increase of earnings. Therefore, the Supreme Court in theFrancis case, established the concept of "Reimbursement Alimony" to be based uponeconomic sacrifices by one spouse during the marriage that directly enhanced the futureearning capacity of the other. Reimbursement Alimony is not subject to modification ortermination until full compensation is achieved, though because of the personal nature ofthe award and the current tax laws, the payments must terminate on the recipient's death. In re Marriage of Francis, 442 N.W.2d 59 (Iowa 1989).

a. In re Marriage of Probasco, 676 N.W.2d 179 (Iowa 2004). The Supreme Courtdenied reimbursement alimony because the facts did not meet the criteria: themarriage was not one of short duration devoted almost entirely to the educationaladvancement of one spouse. The parties had a substantial net worth whichprovided the "supporting" spouse a generous property settlement. The districtcourt awarded reimbursement alimony because the husband had received thebusiness which would produce income for him in the future, and the wife had nosuch asset. This reasoning ignored that the valuation of the business took intoconsideration the future earnings of the business.

b. With In re Marriage of Jennings, 455 N.W.2d 284 (Iowa App. 1990), the courtof appeals began to define the limits of Reimbursement Alimony by denying anyalimony to a former spouse after a five-year marriage. The court of appeals ruledthat where, as here, the "supporting spouse" does not make substantial sacrificesto assist in the attainment of the degree and where sufficient assets exist to providesome compensation, alimony may be denied. See also In re Marriage of Grauer,478 N.W.2d 83 (Iowa App. 1991).

c. However, the Court of Appeals rejected the husband's argument that the award ofreimbursement alimony should be set off by the amount of rehabilitative alimony. In re Marriage of Farrell, 481 N.W.2d 528 (Iowa App. 1991). These two types ofalimony are designed to achieve different goals and may not be offset against eachother.

d. In re Marriage of Mouw, 561 N.W.2d 100 (Iowa App. 1997), the Court ofAppeals held that Francis formula should not be applied to all cases. Here, thecontributing spouse also received a very valuable education with a bright futureand a number of other factors should be considered: Athis is not so much acomputation of dollars and cents as a balancing of equities.@ Mouw, at 102.

e. In re Marriage of Pearson-Williams, No. 2-852 / 12-0631 (Iowa App., 2012). Reimbursement spousal support is based upon economic sacrifices made by onespouse during the marriage that directly enhance the future earning capacity of the

-12-

other. In re Marriage of Francis, 442 N.W.2d 59, 64; In re Marriage of Farrell,481 N.W.2d 528, 530 (Iowa Ct. App. 1991). Reimbursement support isappropriate following "marriages of short duration which are devoted almostentirely to the educational advancement of one spouse and yield the accumulationof few tangible assets." Francis, 442 N.W.2d at 62. An award of reimbursementsupport should be based upon the future earning capacities of the parties. Id. at 64.In determining future earning capacity, a court may consider the education, skill,or talent of the parties. In re Marriage of Horstmann, 263 N.W.2d 885, 891 (Iowa1978). Here, Matt and April, then unmarried, moved to Des Moines so that hecould attend medical school. They married in 2007; and April worked to supportthe family and handled the great majority of household tasks and child care soMatt could keep up with his work and stay on track to graduate. After graduation,April provided significant and critical help to Matt with his residency applications,while she continued to work full-time. The court awarded April reimbursementalimony, ordering Matt to pay $130,000, $1,000 per month for 130 months. TheCourt noted that this amount of reimbursement support "will adequatelycompensate April for her contributions to Matt's earning potential," while takinginto account any uncertainty regarding Matt's future income, April's demonstratedability to succeed professionally, and Matt's obligation to repay a high amount ofstudent loan debt.

4. Alimony Termination

The general rule is that alimony does not automatically terminate upon remarriage;however, the burden shifts to the recipient to show extraordinary circumstances existwhich require the continuation of alimony payments. In re Marriage of Whalen, 569N.W.2d 626 (Iowa App. 1997). See also In re Marriage of Shima, 360 N.W.2d 827, 828(Iowa 1985) and In re Marriage of Von Glan, 525 N.W.2d 427 (Iowa App. 1994).

In re Marriage of Juhl, No. 2-465 /11-1294 (Iowa App. 2012). After a 23-year marriage,Jeffrey was 47, and Judy was 52. Jeffrey was ordered to pay permanent alimony of$5,000 per month until he reaches age sixty-five. Jeffrey's earning capacity was $480,000and Judy's was $25,000 per year. Both parties were in good physical health and bothearned college degrees during the marriage. Jeffrey earned a medical degree in 2001. Judy never earned more than about $25,000 and did not work after Jeffrey began workingas an anesthesiologist. Judy's earning capacity would not allow her to be self-supportingat any standard of living reasonably comparable to what the parties enjoyed later in themarriage. Alimony is not an absolute right. In re Marriage of Anliker, 694 N.W.2d 535,540 (Iowa 2005). An award of alimony depends on the particular circumstances of eachcase. In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996). Even thoughall of the debts were assigned to Jeffrey in the property division, he is able to pay alimonywithout any significant diminution in his standard of living. Jeffrey was earning nineteentimes as much as Judy had ever earned. The Court also refused to require that alimonywould terminate upon Judy’s remarriage. It has long been the rule that a subsequentremarriage does not automatically terminate alimony but shifts the burden to the recipientto show extraordinary circumstances justifying its continuation. In re Marriage of Shima,360 N.W.2d 827, 828 (Iowa 1985); In re Marriage of Cooper, 451 N.W.2d 507, 509 (IowaCt. App. 1989).

a. Whether alimony should continue after remarriage or cohabitation depends uponthe purpose behind the award of alimony. Continued alimony after remarriagemost often occurs with rehabilitative and reimbursement alimony because the

-13-

purposes to be accomplished by these kinds of alimony will not be ordinarilyaffected by remarriage or cohabitation. In addition, retirement benefits whichfunction as a distribution of property but are classified as alimony may alsocontinue upon remarriage. In re Marriage of Bell, 576 N.W.2d 618 (Iowa App.1998).

b. "Parties can contract and dissolution courts can provide that alimony is notmodifiable, does not terminate on remarriage, or is payable in a lesser sum onremarriage". In re Marriage of Aronow, 480 N.W.2d 87, 89 (Iowa 1991).

c. Rehabilitative alimony may be terminated when the dependent spouse becomes"self-supporting". However, for purposes of modification of alimony decrees, thestandard of living sought to be established by alimony awards is the lifestyleestablished by the parties during the marriage. In re Marriage of Boyd, 200N.W.2d 845, 854 (Iowa 1972). See also In re Marriage of Gilliland, 487 N.W.2d363 (Iowa App. 1992).

d. In re Marriage of Wendell, 581 N.W.2d 197 (Iowa App. 1998), the Court ofAppeals revisited its long-standing policy of generally providing in an originaldecree that alimony will terminate upon cohabitation of the recipient with amember of the opposite sex as well as upon remarriage. The Court held that A. .. . cohabitation has too many variables to be a defined future event, likeremarriage, in a dissolution decree. . . . Although we have tied cohabitation toremarriage in the past, we will no longer use cohabitation as an event to terminatealimony. . . . Like cohabitation, we believe events such as employment and self-sufficiency should be reserved for modification action.

e. With In re Marriage of Ales, 592 N.W.2d 698 (Iowa App. 1999), the Court ofAppeals further refines the process of handling of cohabitation by specifying theburdens of proof. In future cases, the Petitioner in a modification action will berequired to show there is a cohabitation to meet the substantial change ofcircumstances requirement under Iowa Code Section 598.21(8). Then, the burdenwill shift to the recipient to show why spousal support should continue in spite ofthe cohabitation because of an on-going need or because the original purpose forthe support award makes it unmodifiable.@ Ales, at 703.

f. The most important facts which establish cohabitation: “(1) an unrelated personof the opposite sex living or residing in the dwelling house of the former spouse,(2) living together in the manner of husband and wife, and (3) unrestricted accessto the home. In re Marriage of Harvey, 466 N.W.2d 916, 917 (Iowa 1991). SeeIn re Marriage of Gibson, 320 N.W.2d 822, 824 (Iowa 1982).

5. Alimony Payment

a. Assignment of Income. In In re Marriage of Debler, 459 N.W.2d 267 (Iowa1990), the Supreme Court ruled that though Section 598.22 only specificallypermits automatic assignment of income for payment of child support, the DistrictCourt has the inherent equitable power to order comparable assignments ofincome for payment of delinquent alimony. Where, as here, the former husband'ssupport record is poor and he works out of state, use of the Court's power to orderassignment is appropriate.

-14-

b. Order to Withhold Income can now be issued as an alternative to punishment forcontempt under Section 598.23 or pursuant to a recently revised Chapter 252D.

6. Alimony QDRO

The issuance of a Qualified Domestic Relations Order (QDRO) directing the assignmentof former husband's pension benefits to pay alimony obligation does not constituteunlawful modification of a property settlement. It was an effort to enforce provisions ofthe prior decree. In re Marriage of Bruns, 535 N.W.2d 157 (Iowa 1995). See also In reMarriage of Rife, 529 N.W.2d 280 (Iowa 1995)[federal law prohibits garnishment ofpension benefits for ordinary debts, but 29 U.S.C. Section 1056(d)(3)(B) specificallyexempts QDRO's].

7. Alimony Insurance/Security

a. Courts do not always require that provision be made to protect the dependentspouse if the payor dies while alimony is still needed. However, in In re Marriageof LaLone, 469 N.W.2d 695 (Iowa 1991), the Supreme Court held that alimonymust terminate upon the death of the recipient to be considered tax-deductiblealimony under I.R.C. 71(b)(1)(D) and should ordinarily terminate on the death ofthe payor where substantial life insurance is payable to the recipient on the deathof the payor.

b. In re Marriage of Hettinga, 574 N.W.2d 920 (Iowa App. 1997). The Court heldthat: AThe district court has the authority to secure performance of future alimonypayments by requiring adequate security or imposing appropriate liens on theobligor=s property. . .@ However, it removed liens against the payor=s land andcanceled a provision which provided that if a husband should predecease the wife,his estate was obligated to purchase an annuity or otherwise, to the satisfaction ofthe wife, to guarantee payment of the alimony for her lifetime. See also In reMarriage of Lytle, 475 N.W.2d 11 (Iowa App. 1991) and In re Marriage of VanRyswk, 492 N.W.2d 728 (Iowa App. 1992).

c. Where there are significant reasons for providing life insurance as security for thepayee; and the cost to the payor of providing such insurance is known and notburdensome, a provision in a dissolution decree that requires a party to maintainlife insurance is appropriate and enforceable. Stackhouse v. Russell, 447 N.W.2d124, 125 (Iowa 1989); In re Marriage of Debler, 459 N.W.2d 267, 270 (Iowa1990). Iowa Code §598.21A(1) is broad enough to permit spousal supportpayments after death. In re Marriage of Weinberger, 507 N.W.2d 733, 736 (IowaCt.App.1993).

8. Veteran Pension Available for Alimony

Veteran’s benefits are not provided solely for the veteran but for his family as well. Family support, child support and alimony, can be ordered to be paid from V.A. benefitswithout violating the Supremacy Clause of the U.S. Constitution. In re Marriage ofAnderson, 522 N.W.2d 99 (Iowa App. 1994).

-15-

9. Income Available for Alimony

a. Overtime . In re Marriage of Schriner, 695 N.W.2d 493 (Iowa 2005). Though hewas earning substantial overtime at the time of trial, John testified that a recentinjury was likely to cause him to stop working more than the minimum. TheSupreme Court decided that child support precedent=s stating that overtimeincome should be considered when "overtime has been consistent, will beconsistent, and is somewhat voluntary" and when the "overtime pay is not ananomaly or speculative," [In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa1992)] should apply to alimony considerations.

b. Earnng Capacity/Imputed Income. In re Beattie, No. 3-372/12-1524 Iowa App.,2013). Daniel Beattie argued that the district court erred in its calculation of hisincome and the spousal support order of $300.00 per month to Charlene, as wellas in ordering him to pay for half of the monthly mortgage for the parties' maritalhome. The court decided his yearly gross income was $29,000. Daniel had anadvanced academic degree, but had not recently found lucrative work. Headmitted that he had refused a higher income job because he believed that thehours would interfere with his time with the children. In addition, he had beenoffered substitute teaching hours, and he testified he could return to his career asa pastor. Therefore the district court found his reduced income was voluntary, andthat the average of four years of pre-divorce income more accurately reflected hisannual earning capacity than did is current income. In re Marriage of Powell, 474N.W.2d 531, 534 (Iowa 1991).

10. Alimony and Property Division

In assessing a claim for spousal support, we consider the property division and spousalsupport provisions together in determining their sufficiency. See In re Marriage of Lattig,318 N.W.2d 811, 815 (Iowa Ct.App.1982). However, there are important differencesbetween property division and alimony. A property division divides the property at handand is not modifiable, Iowa Code § 598.21(7), while a spousal support award is made incontemplation of the parties' future earnings and is modifiable. Id. §598.21C (2007). Seealso In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App.1994); and In reMarriage of Russell, 473 N.W.2d 244, 246-47 (Iowa Ct.App.1991).

In re Marriage of Griffith , No. 2-1192-0801 (Iowa App., 2013). Ed argued that sincehis pension was divided as marital property in the decree, his share of the pension couldnot be considered in determining his ability to pay alimony to Jane. While the Court inIn re Marriage of Huffman, 453 N.W.2d 246, 248 (Iowa Ct. App. 1990) refused to requirethe husband to pay alimony out of his pension because it would be his only substantialsource of income after the dissolution, Huffman does not bar consideration of pensionbenefits when determining spousal support. In In re Marriage of McLaughlin, 526N.W.2d 342, 345 (Iowa Ct. App. 1994), a wife received a significant portion of herhusband's pension plan, and in granting her alimony, the Court held that "[w]e consideralimony and property division together in assessing their individual sufficiency." Jane andEd were married almost 23 years. Both parties treated Jane's teaching career as secondaryand supplemental to Ed's career. Given Jane's age and absence from the job market, shewould not easily find employment similar to her previous teaching career or employmentthat will allow her a standard of living comparable to that which she enjoyed during themarriage. Ed had sufficient income to contribute to her support while still maintaining hisown comfortable and comparable lifestyle.

-16-

11. Attorney Fees

a. Financial Circumstances of Parties. Trial courts have considerable discretion inawarding fees. In exercising its discretion to award attorney fees, the court shouldmake an award which is fair and reasonable in light of the parties= financialpositions. In re Marriage of Grady-Woods, 577 N.W.2d 851 (Iowa App. 1998). See also In re Marriage of Titterington, 488 N.W.2d 176 (Iowa App. 1992). In reMarriage of Willcoxsin, 250 N.W.2d 425, 427 (Iowa 1977); In re Marriage ofLattig, 318 N.W.2d 811, 817 (Iowa App. 1982).

b. Frivolous Litigation. In addition, the Supreme Court has decided that the frivolouslitigation tactics and meritorious applications, in addition to disparity in incomes,are factors the court should consider in awarding attorney fees. Seymour v.Hunter, 603 N.W.2d 625 (Iowa 1999).

c. Failure to Cooperate in Discovery. In re Marriage of Kinser, No. 2-166/No. 11-0169 (Iowa App. 2012). Mark was uncooperative during the discovery process. He failed to respond to interrogatories propounded, despite multiple attempts byAmy's attorney to obtain the materials. Over the span of nearly a year, Amy filedtwo motions to compel and one motion for sanctions, each of which was grantedby the court. An award of attorney fees is appropriate when one party is less thancooperative in producing discovery. See In re Marriage of Crosby, 66,9 N.W.2d255 (Iowa 2005). Here, the Court approved $5,000 in trial attorney fees andgranted Amy $5,000 in appellate attorney fees. See also In re Marriage of Miller,552 N.W.2d 460, 465 (Iowa Ct. App. 1996).

d. Expert Fees. In re Marriage of Schenkelberg, 824 N.W.2d 481 (Iowa 2012). The court has considerable discretion in awarding attorney fees. In re Marriage ofMaher, 596 N.W.2d at 568; and the court may consider expert fees in an award ofattorney fees. See In re Marriage of Muelhaupt, 439 N.W.2d at 662-63; see alsoTydings v. Tydings, 567 A.2d 886, 891 (D.C. 1989). Julianne's attorney hired anexpert to assist him with trial preparation. The expert, a certified publicaccountant, billed $17,050 for services provided in assisting Julianne's attorneyto prepare for trial. The district court awarded Julianne $30,000 in attorney fees,but refused to reimburse her for the expert’s bill because it found the expert'sreport "was not necessary and contributed nothing to the determination of spousalsupport." The Supreme Court disagreed and found that the value of the assetsreceived by Gary, the sums he obtained from the subchapter-S corporation, andthe tax consequences of awarding spousal support were important considerationsin making the award of spousal support. Accordingly, Julianne was awarded anadditional $17,050 towards her attorney fees for the expert's services.

C. DIVISION OF PROPERTY

1. Choice of Law

a. Iowa courts had not previously determined the choice of law rule applicable indetermining which states' law applies to issues of property characterization anddistribution in divorce actions involving parties who own personal property in acommunity property state. In In re Marriage of Whelchel, 476 N.W.2d 104 (IowaApp. 1991), the Iowa Court of Appeals adopts Restatement (Second) of Conflict

-17-

of Laws Section 258(1): The interest of a spouse in personal property acquiredduring the marriage will generally be determined by the law of the state where thespouses were domiciled at the time the item of personal property was acquired.

b. However, the importance of the Whelchel case may be limited because in Nicholsv. Nichols, 526 N.W.2d 346 (Iowa App. 1994), Whelchel and the choice of lawissue were ignored. The Court of Appeals ignored the law of the state where theasset was acquired, and applied Iowa law.

2. Factors in Equitable Division

a. Equality of Division

(1) While Iowa Courts do not require an equal division or percentage distribution ofmarital assets (In re Marriage of Hoak, 365 N.W.2d 185, 194 [Iowa 1985]), A... itshould nevertheless be a general goal of trial courts to make the division ofproperty approximately equal. In re Marriage of Conley, 284 N.W.2d 220, 223(Iowa 1979).@ In re Marriage of Miller, 552 N.W.2d 460 (Iowa App. 1996). Seealso, In re Marriage of Russell, 473 N.W.2d 244 (Iowa App. 1991).

(2) In Marriage of Bonnette, 584 N.W.2d 713 (Iowa App. 1998), Since the trial courtfailed to explain a $20,000 difference between the values of the assets awarded toeach party, the Court of Appeals granted the wife an additional $10,000 propertysettlement.

b. Gender Neutral

"We must approach this issue from a gender-neutral position avoiding sexual stereotypes. See In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa App. 1992)...It is impor-tant...that we respect the rights of individuals to designate a primary wage earner duringthe marriage and erase any gender bias that because [the husband] is male, it wasincumbent upon him to have employment." In re Marriage of Pratt, 489 N.W.2d 56, 58(Iowa App. 1992). See also In re Marriage of Swartz, 512 N.W.2d 825 (Iowa App. 1993).

c. Tax Consequences/Selling Costs

The Court should consider tax consequences of the sale of assets where the propertysettlement requires liquidation of the assets.

(1) Section 598.21(1)(j) requires the Court to consider the tax consequences of theproperty settlement where the adverse tax consequences cannot reasonably beavoided. In re Marriage of Hogeland, 448 N.W.2d 678 (Iowa App. 1989).

(2) However, subtracting an estimate of the expense of capital gains taxes and sellingcosts in the event corporate stock was sold is not appropriate where sale is notpending or contemplated. The Supreme Court reversed the Trial Court which hadreduced the value of the wife's interest in corporate stock from $637,000.00 to$336,000.00 by deducting the estimated costs of sale and income taxes. In reMarriage of Friedman, 466 N.W.2d 689 (Iowa 1991). See In re Marriage ofHaney, 334 N.W.2d 347 (Iowa App. 1983); but see In re Marriage of Hoak, 334

-18-

N.W.2d 185 (Iowa 1985) and In re Marriage of Dahl, 418 N.W.2d 358 (Iowa App.1987).

(3) In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013). The Court ofAppeals reduced the district court property division equalization payment from more than $1 million to $250,000 finding that the district court failed to considerthe tax consequences of the property division. The Supreme Court granted furtherreview and vacated the decision of the Court of Appeals, holding that the districtcourt was correct in its calculation of the equalization payment. Court must oftenaward a farm to the spouse who operated it and set a schedule of propertysettlement payments to the other spouse without reaching equality so the farmer-spouse might retain ownership of the farm. In re Marriage of Callenius, 309N.W.2d 510, 515 (Iowa 1981) (citing In re Marriage of Andersen, 243 N.W.2d562, 564 (Iowa 1976)) . However, a party's interest in preserving the farm shouldnot work to the detriment of the other spouse in determining an equitablesettlement. Stephen argued tha he would have to sell land and incur taxes andselling expenses or take out a mortgage he cannot afford in order to make a $1million equalization payment. The Court rejected this argument. Stephen wasoffered a mortgage loan to make the payment by his bank; and would not haveapproved the loan if Stephen did not have the resources to repay the loan. Inaddition, Stephen's tax returns showed that his true cash flow was substantiallyhigher than his taxable income. Accelerated depreciation for example clearlydistorted his actual ability to make loan payments. Finally, Stephen’s financialhistory showed that the farms generate substantial cash flow. He paid off asubstantial debt to his parents nine years early, while at the same time makingdouble payments on other debts.

d. Property in Lieu of Alimony/Support

Given the wife=s preference to be self-supporting and the acrimonious relationship betweenthe parties, the Supreme Court agreed with the trial court that additional assets in theproperty division should be awarded to her in lieu of an alimony award. In re Marriageof Goodwin, 606 N.W.2d 315 (Iowa 2000).

In re Marriage of Ambrosy, No. 2-751 /12-0492 (Iowa App., 2012). After an eleven-year marriage, the Court found that an award of traditional alimony would ordinarily beappropriate. Sara, 51, and Lorin, 50, were healthy and employed full-time. However, Saracould only earn $31,499 per year, while Lorin income was $76,937. The parties stipulatedthat Sara would receive the marital home and other assets with a total value of $235,874,63% of the parties' net worth. Assets could not be sold, and Sarah could not borrow fundsto make a lump-sum equalization payment to Lorin. Therefore, the Court approved the"disparate" property division in lieu of traditional alimony. The Court noted that if Sarawas ordered to pay the amount needed to equalize the property division in installments andif Lorin was required to pay alimony, his payments would effectively be cancelled by the property settlement payments. The property distribution and spousal support provisionsof a decree are considered together to determine their sufficiency. In re Marriage of Hazen,778 N.W.2d 55, 59 (Iowa Ct. App. 2009). Iowa is an equitable division state. In a caselike this equitable division does not necessarily mean an equal division of the assets.

-19-

e. No Bonus Property for Domestic Abuse

However, in In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000), the Supreme Courtrefused an additional share of the parties’ assets as compensation for domestic abuseclaimed to have been suffered during the marriage. We reject this argument because itwould introduce the concept of fault into a dissolution of marriage action, a model rejectedby our Legislature in 1970. See In re Marriage of Williams, 199 N.W.2d 339, 341 (Iowa1972)

f. Accumulation During Separation

In In re Marriage of Driscoll, 563 N.W.2d 640 (Iowa App. 1997), the Court held thatordinarily, the value of the assets should be determined as of the date of trial. Locke v.Locke, 246 N.W.2d 246 (Iowa 1976). However, A[t]here may be occasions when the trialdate is not appropriate to determine values. Equitable distributions require flexibility, andconcrete rules of distribution may frustrate the Court=s goal of obtaining equitable results.@ Driscoll, at 42. See also In re Marriage of Muelhaupt, 439 N.W.2d 656 (Iowa 1989); Inre Marriage of Clinton, 579 N.W.2d 835 (Iowa App.1998), In re Marriage of McLaughlin,526 N.W.2d 342 (Iowa App. 1994); In re Marriage of Meerdink, 530 N.W.2d 458 (IowaApp. 1995); and In re Marriage of Campbell, 623 N.W.2d 585 (Iowa App. 2001).

g. Failure of Duty to Disclose

"Both parties are required to disclose their financial status. ... Iowa Code Section 598.13... failure to comply with the requirements of this section constitute failure to makediscovery as provided in Rule of Civil Procedure 1.517 (formerly Rule 134)." In reMarriage of Meerdink, 530 N.W.2d 458, 459 (Iowa App. 1995). See also, In re Marriageof Hanson, 475 N.W.2d 660 (Iowa App. 1991); In re Marriage of Williams, 421 N.W.2d160, 164 (Iowa Ct. App. 1988).

h. Tax Obligations.

In re Marriage of Williams, No. 30414/12-1682 (Iowa App., 2013). Charlyn argued thatbecause the parties separated a few months into 2010, she should not be responsible forany of the tax debt from Eric's self-employment. Eric countered that allocating all of thetax debt to him would be inequitable because after the parties separated, he still paid forCharlyn's car payment, car insurance, home mortgage, utilities, and home insurance. Heargued that failure to divide the tax debt would leave him with a highly disproportionateburden of the couples' debt: Charlyn would receive $13,341 in assets and Eric wouldreceive $83,865 in debts. Though in In re Marriage of Sullins, 715 N.W.2d 242 (Iowa2006), the court required a self-employed husband to be fully responsible for his taxliability, the parties had filed separately and the tax problems were caused by the husband. Here, the court found that since Charlyn benefitted from Eric’s income, allocation of thetax debt jointly was a necessary part of an equitable division of the parties’ assets and debt.

i. Dissipation of Assets.

(1) In re Marriage of Burgess, 568 N.W.2d 827 (Iowa App. 1997). Conduct whichcauses loss of marital property and dissipation or waste of assets may generallybe considered in making a property division. However, the focus should not beon whether one spouse or the other is personally responsible for a debt, butwhether the payment of an obligation was a reasonable and expected aspect of the

-20-

particular marriage. Here, the wife knew that her husband had alimony and childsupport obligations which would be part of her marriage prior to the marriage.

(2) However, in In re Marriage of Bell, 576 N.W.2d 618 (Iowa App. 1998), the Courtheld that Aconduct of a spouse which results in loss or disposal of propertyotherwise subject to division at the time of divorce may be considered in makingan equitable distribution of property.@ Bell at 624. The record indicated that thehusband had spent significant portions of marital assets on gambling prior to thedissolution. This waste of marital assets can be considered in the propertydistribution and supports the unequal division of the parties= assets. See also Inre Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000); In re Marriage of Cerven,335 N.W.2d 143, 1446 (Iowa 1983); In re Marriage of Wendell, 581 N.W.2d 197(Iowa App. 1998); and In re Marriage of Martens, 680 N.W.2d 378 (Iowa App.2004).

(3) In In re Marriage of Crosby, 699 N.W.2d 255 (Iowa 2005), the Court divided theassets equally, but then reimbursed Clayton’s wife for litigation expenses sheincurred which were caused by Clayton's failure to disclose, secretion of assets,and transfer of assets during the dissolution process because of his conduct. Theseacts must be dealt with harsh. . Otherwise the dissolution process becomes anuncivilized procedure and the issues become not ones of fairness and justice butwhich party can outmaneuver the other. In re Marriage of Williams, 421 N.W.2d160, 164 (Iowa Ct. App. 1988).

(4) In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007). Michele alleged thatTed indirectly dissipated their marital assets, not by paying out large amounts butby accumulating large amounts of debt which would eventually reduce the parties’net worth. In determining whether dissipation has occurred, courts must decide“(1) whether the alleged purpose of the expenditure is supported by the evidence,and if so, (2) whether that purpose amounts to dissipation under the circum-stances.” Lee R. Russ, Spouse's Dissipation of Marital Assets Prior to Divorceas Factor in Divorce Court's Determination of Property Division, 41 A.L.R.4th416, 421 (1985). See In re Marriage of Burgess, 568 N.W.2d 827, 829 (IowaCt.App.1997).

In re Marriage of Nevins , No. 2-544/11-1541 (Iowa App. 2012). Lyle usedapproximately $59,000.00 of his $115,000.00 401(k) account on early-withdrawalpenalties and attorney fees incurred during the divorce proceedings and in anotherlegal matter. The court may consider the dissipation of assets when dividingproperty. In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007). In determin-ing whether the purpose of the expenditure amounts to dissipation, the courtconsiders several factors: (1) the proximity of the expenditure to the parties'separation, (2) whether the expenditure was typical of expenditures made by theparties prior to the breakdown of the marriage, (3) whether the expenditurebenefited the "joint" marital enterprise or was for the benefit of one spouse to theexclusion of the other, and (4) the need for, and the amount of, the expenditure. Here, the Court found that Lyle did in fact dissipate assets by removing fundsfrom the Fidelity 401(k) and using the same to satisfy legal attorney fees in thisand other actions to the detriment of Nancy. Therefore, Lyle was required tocredit Nancy $29,500, ½ of the $59,000.00 he withdrew and spent from theaccount. See In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000).

-21-

3. Premarital Agreements

a. Since 1992, Chapter 596, Iowa's version of the Uniform Premarital Agreement Act,controls premarriage agreements in Iowa. The Statute made significant changes in themanner in which premarital agreements are prepared and enforced.

b. Content. Premarital agreements may include provisions relating to the following issues: (a) property rights and obligations of the parties; (b) rights of disposing of, managing andcontrolling property; (c) disposition of property upon death or divorce; (d) the making ofwills, trusts, or other arrangements to carry out the provisions of the agreement; (e)disposition of life insurance death benefits; (f) choice of law; and (g) any other matter notin violation of public policy or a criminal statute. However, unlike the standard UniformAct, an Iowa premarital agreement cannot contain a provision which adversely affects theright of a spouse or child to support. This is consistent with current Iowa precedent: "Any provision of an antenuptial agreement which may be interpreted as prohibitingalimony is contrary to public policy and thus void." In re Marriage of Van Brocklin, 468N.W.2d 40 (Iowa App. 1991). See also In re Marriage of Gudenkoff, 204 N.W.2d 586,587 (Iowa 1973).

c. Alimony Waiver. Iowa Code Section 596.5(2) prohibits provisions in premaritalagreements which adversely affect the right of a spouse or child to support. However, Inre Marriage of Van Regenmorter, 587 N.W.2d 493 (Iowa App. 1998) holds that premaritalagreements entered from 1980 through 1991 may contain provisions for elimination ofspousal support. However, any such alimony waiver provision is not binding on a court,though it must be considered with the other factors of Section 598.21(3) in making thespousal support award.

d. Revocation/No Abandonment. Section 596.7 provides that premarital agreements may berevoked only by a written agreement signed by both spouses or by a finding that theagreement was not voluntarily executed or was unconscionable. Agreements entered intobefore January 1, 1992 will be enforced under prior Iowa precedents which provide thatpremarital agreements like any other contract can be "abandoned" by conduct in additionto express agreement. In re Marriage of Pillard, 448 N.W.2d 714 (Iowa App. 1989); In reMarriage of Elam, 680 N.W.2d 378 (Iowa App. 2004).

e. When parties enter a prenuptial agreement, in the absence of fraud, mistake, or undueinfluence, the contract is binding. If the court were to award different assets than thoseagreed by the parties, it would, in effect, be rewriting the premarital agreement. In reMarriage of Applegate, 567 N.W.2d 671 (Iowa App. 1997).

f. AIowa cases have long held prenuptial agreements are favored in the law. ... They allowparties to structure their financial affairs to suit their needs and values and to achievecertainty. This certainty may encourage marriage and may be conducive to maritaltranquility...@ In re Marriage of Spiegel, 553 N.W.2d 309 (Iowa 1996). AThe personchallenging the agreement must prove its terms are unfair or the person=s waiver of rightswas not knowing and voluntary ... The terms of an agreement are fair when the provisionsof the contract are mutual or the division of property is consistent with the financialcondition of the parties at the time of execution. Of course, the affirmative defenses offraud, duress, and undue influence are also available to void a prenuptial agreement as withany other contract.@ Spiegel, at 316.

-22-

g. In re Marriage of Shanks, 748 N.W2d 506 (Iowa 2008) Premarital agreements executedafter 1991 must conform to the Iowa Uniform Premarital Agreement Act (IUPAA), IowaCode Chapter 596. The IUPAA provides three independent bases for finding a premaritalagreement unenforceable: (1) The person did not execute the agreement voluntarily. (2)The agreement was unconscionable when it was executed. (3) Before the execution of theagreement the person was not provided a fair and reasonable disclosure of the property orfinancial obligations of the other spouse. In re Marriage of Spiegel, 553 N.W.2d at 317. Also, the IUPAA requires that unconscionability be determined as of the time when theagreement was executed.

4. Post-Marital Agreements

Iowa Code Section 598.21(k) requires that the Court consider any written agreement of the parties(except perhaps those which have been rejected or repudiated) but (a) it is only one of theconsiderations the Court must address; and (b) any stipulated property settlement is a contractbetween the parties which only becomes final when it is accepted and approved by the Court. SeeIn re Marriage of Bries, 499 N.W.2d 319 (Iowa App. 1993) and In re Marriage of Hansen, 465N.W.2d 906 (Iowa App. 1990).

a. The Court retains the power to reject a stipulation, but should do so in dissolution mattersonly if the court determines the stipulation is unfair or contrary to law. Matter of Ask,551 N.W.2d 643 (Iowa 1996). In reviewing post-marriage agreements, the Court will usebasic contract analysis to determine whether an agreement was made and should beenforced. In re Marriage of Masterton, 453 N.W.2d650 (Iowa App. 1990). See also In reMarriage of Butterfield, 500 N.W.2d 95, 98 (Iowa App. 1993)[the Stipulation becomesfinal when it is accepted and approved by the Court]; In re Marriage of Zeliadt, 390N.W.2d 117, 119 (Iowa 1986)[A stipulated settlement should be approved and enforcedonly if a district court determines the settlement will not adversely affect the best interestsof the parties' children]; and In re Marriage of Udelhofen, 538 N.W.2d 308 (Iowa App.1995); In re Marriage of Briddle, 756 N.W.2d 35 (Iowa 2008).

b. Once the court enters a decree, the stipulation has no further effect. The decree, not thestipulation, determines what rights the parties have. In re Marriage of Jones, 653 N.W.2d589 (Iowa 2002). See Bowman v. Bennett, 250 N.W.2d 47, 50 (Iowa 1977). A party=sremedy for post-trial events lies in an application to modify the decree.

c. In re Marriage of Cooper, 769 N.W.2d 582 (Iowa 2009) A reconciliation agreement, whichimposed severe penalties in the event of infidelity, could be considered by the Court underIowa Code § 598.21(1) (k ). However, post-marital agreements are only considered,among other factors, in making property divisions. More important, Iowa will not enforcecontracts which attempt to regulate spouse’s personal conduct. Miller v.. Miller, 78 Iowa177, 179, 42 N.W. 641, 641 (1889). “Our no-fault divorce law is designed to limitacrimonious proceedings. A contrary approach would empower spouses to seek anend-run around our no-fault divorce laws through private contracts.” See Diosdado v.Diosdado, 118 Cal.Rptr.2d 494, 496 (Ct.App.2002).

5. Property Settlement Installment Terms

a. The Supreme Court held that Iowa Code Section 535.3 requires interest to accumulate ata rate calculated according to Section 668.13 when the decree or judgment makes noreference to the matter of interest on all money due on judgments or decrees and fixedawards of money for child support, alimony and property settlement. In re Marriage of

-23-

Dunn, 455 N.W.2d 923 (Iowa 1990). See Arnold v. Arnold, 140 N.W.2d 874, 877 (Iowa1966). However, in In re Marriage of Kinney, 478 N.W.2d 624 (Iowa 1991). TheSupreme Court ruled that in many cases, it would be equitable to award interest to offsetan award to one party of income-producing property (for example, a family home is notincome-producing).

b. In re Marriage of Keener, 728 N.W.2d 188 (Iowa 2007). Interest may not be necessary inevery case, but it certainly is where the amount of the total being paid is large and the goalis the approximate equal division of the parties’ marital assets. The court must considerthe time value of money. See In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa1979). In addition, the Supreme Court found that a judgment lien against real estate asprovided by Iowa Code section 624.23 and a UCC lien pursuant to Iowa Code chapter 554against corporate stock were appropriate to secure the obligation.. See generally Siragusav. Brown, 971 P.2d 801 (Nev.1998). Finally, the Court ordered that an acceleration clausewas appropriate to require immediate payment if the ability to make the propertysettlement payments in the future becomes doubtful.

c. However, trial courts in dissolution proceedings, sitting in equity, retain the power to denyinterest on property settlement judgments or to award interest at amounts less than requiredby Iowa Code Section 535.3. In re Marriage of Friedman, 466 N.W.2d 689 (Iowa 1991). See also In re Marriage of Callenious, 309 N.W.2d 510 (Iowa 1981).

d. The party who seeks an interest rate less than that ordinarily required by '535.3 must showcircumstances of the property settlement which warrant a departure from the statutoryinterest rate. In re Marriage of Blume, 473 N.W.2d 629 (Iowa App. 1991). In In reVanderpol, 529 N.W.2d 603 (Iowa App. 1994).

6. Separate Property: Inherited or Gifted

Iowa Code Section 598.21(2) requires that gifts or inheritances received by one party duringmarriage are not subject to division unless failure to do so would be inequitable. Property broughtinto the marriage by each party is not treated as a special category like gifts and inheritances. Thepremarriage assets are only a factor for the court to consider.

a. Iowa Code Section 598.21(2) and the Case Law (see In re Marriage of Thomas, 319N.W.2d 209 [Iowa 1982] and In re Marriage of Van Brocklin, 468 N.W.2d 40 (Iowa App.1991)) start with the premise that inherited property is not subject to division; but thispremise yields where its application would be unjust.

b. The first step in the division of property is to set aside the inherited or gifted assets and thedebts associated with these assets. Thereafter, the marital assets and debts should bedistributed. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991). See In reMarriage of Sparks, 223 N.W.2d 264 (Iowa App. 1982).

c. The fact that gifts have been commingled with marital assets or placed in joint ownershipis not the controlling factor in determining whether an equitable distribution of gifts orinherited property is warranted. In re Marriage of Fall, 593 N.W.2d 164 (Iowa App.1999). ...the manner a married couple titles or holds inherited or gifted property is not acontrolling factor in assessing its treatment as a gift or inheritance under Section598.21(2).” Fall at 167. See also In re Marriage of Thomas, 319 N.W.2d 209, 211 (Iowa1982)[the factors to be considered before dividing inherited and gifted property]; In reMarriage of Wertz, 492 N.W.2d 460 (Iowa App. 1996); In re Marriage of Higgins, 507

-24-

N.W.2d 725 (Iowa App. 1993 )[husband's inheritance deposited to the wife's solely-ownedcredit union account remained the husband's separate property, not marital property]; Inre Marriage of Cupples, 531 N.W.2d 656 (Iowa App. 1995); and In re Marriage of Dean,642 N.W.2d 321 (Iowa App. 2002).

d. The length of the marriage is one of the most important circumstances considered indetermining whether the commingled gift or inheritance has become a marital asset. In reMarriage of Oler, 451 N.W.2d 9, 11 (Iowa App. 1989). See also In re Marriage of Hardy,539 N.W.2d 729 (Iowa App. 1995).

e. Even though the property is found to be separate property, the court must examine factorsestablished in In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 1989) todetermine whether or not the asset should nevertheless be divided. Factors to consider indetermining whether inherited property should be divided include: (1) contributions of theparties towards the property, its care, preservation, or improvement; (2) the existence ofany independent, close relationship between the donor or testator and the spouse of oneto whom the property was given or devised; (3) separate contributions by the parties totheir economic welfare to whatever extent those contributions preserve the property foreither of them; (4) any special needs of either party; and (5) any other matter which wouldrender it plainly unfair to a spouse or a child to have the property set aside for theexclusive enjoyment of the donee or devisee. See also In re Marriage of Goodwin, 606N.W.2d 315 (Iowa 2000) and In re Marriage of Liebich, 547 N.W.2d 844 (Iowa App.1996).

In re Marriage of Ritchie No. 2-556/11-2029 (Iowa App. 2012). In 2005, Jenniferreceived over $100,000 in real estate and a $298,034.18 IRA from her mother’s estate. Bruce was almost 61 and near retirement. He had suffered a stroke some years earlier andhad various muscular and skeletal problems and heart problems. Jenniferwas only 45 andin good health. Iowa is an equitable distribution state, which means the partners in amarriage that is to be dissolved are entitled to a just and equitable share of the propertyaccumulated through their joint efforts. In re Marriage of Hazen, 778 N.W.2d 55 (IowaCt. App. 2009). The Court considered the factors specified in the Goodwin case above. In addition the Court considered the length of the marriage, the amount of time theproperty was held after it was devised, and whether the parties enjoyed a substantial risein their standard of living as the result of the inheritance are also considered. In reMarriage of Thomas, 319 N.W.2d 201 (Iowa 1982). The Court held that Jennifer'sinherited IRA should be included in the marital estate, but the Court also awarded Jenniferhalf of Bruce’s retirement annuity because he invested in the annuity while Jennifer waswithdrawing money from her inherited IRA to pay for family expenses.

In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013). Bryan inherited 346 acres offarmland, which included a home, several outbuildings, and grain bins. The farm wasappraised at $770,000 in 2004 and $2,428,000 in 2011. Though Inherited property isnormally awarded to the individual spouse who owns the property, this exclusion is notabsolute, and §598.21(6) creates a unique hybrid system that permits the court to divideinherited property if equity so demands. See In re Marriage of Schriner, 695 N.W.2d 493,496 (Iowa 2005), In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000), and Inre Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 1989)). In addition to theMuelhaupt factors, we also consider the length of the marriage, the amount of time theproperty was held after it was devised, and whether the parties enjoyed a substantial risein their standard of living as the result of the inheritance. Goodwin at 319-20. Here,Tammy contributed toward the improvement of the farm home, enjoyed the family

-25-

homestead the last third of the marriage and she had special needs as a result of medicalconditions. This was also long-term marriage of 21 years, and the parties benefited fromthe inheritance the last seven years of the marriage. However, Bryan testified that Tammykept her income separate from his, and she did not contribute to the payments on the farmloan. In addition, the fact that the appreciation in the inherited land value was fortuitousdoes not automatically entitle Tammy to share in the appreciation. The division of theappreciated value of inherited property "should be a function of tangible contributions andnot the mere existence of the marital relationship." In re Marriage of Richards, 439N.W.2d 876, 882 (Iowa Ct. App. 1989). The trial court division left Bryan with a networth of approximately $2.1 million (93% of the property) and Tammy with approxi-mately $151,200 (7% of the property). The Court decided to increase the lump sumproperty settlement award to Tammy by $175,000 , 11% of the farm's appreciation from2004 to the time of trial. This modification results in Bryan receiving a net of $1.925million (86%) and Tammy a net of $326,200 (14%). Bryan was ordered to pay Tammythe additional $175,000 property settlement without interest in ten annual installmentsof$17,500.

f. The homestead, held in joint ownership, was given to Linda by her father because shecared for him during the marriage. Since substantial monies were advanced during themarriage for improvements and maintenance to the home and David supported the familyduring the time Linda cared for her father, the classification of the homestead as maritalproperty in the property division was equitable. In re Marriage of Clark, 577 N.W.2d 662(Iowa App. 1998).

In re Marriage of Reynolds, No. 3-151/12-1456 (Iowa App. 2013). Roger inherited$52,000 from his father in 1992. He invested the money wisely and after his marriage toCarrie in 2001, he purchased the marital home for cash in 2005. Nevertheless, the trialcourt awarded $32,500, one-half the value of the home, to Carrie. The Court of Appealsrecognized that though Iowa Code §598.21(6) usually requires that inherited property isnot subject to a property division, inherited property my be divided where awarding theinheritance to one spouse would be unjust. In re Marriage of McDermott, 827 N.W.2d 671(Iowa 2013), Carrie, 41, worked as a waitress and Roger, 64, received Social Security andwas disabled. Both parties worked and contributed to the expenses and maintenance ofthe property during the marriage. However, were it not for Roger's wisely investedinheritance, the couple would not have been able to purchase the home, and to maintainit free of debt. Therefore, the Court found it more equitable to divide the value of thehome one-fourth to Carrie and three-fourths to Roger.

g. In re Marriage of Rhinehart, 704 N.W.2d 677 (Iowa 2005). The Court consideredDeborah=s $500,000.00 future interest in a family trust fund in deciding whether there wasan equitable division of the parties= property. Since Deborah=s future need for maritalassets was considerably less than Scott=s need due to the anticipated inheritance, the courtapproved the award to Scott of $73,895 more in marital property than Deborah received. In an obvious response to the Rhinehart decision, the 2007 Iowa Legislature amended§598.21(5)(I) to omit from property division. “. . .expectancies or interests arising frominherited or gifted property created under a will or other instrument under which the[fiduciary] has the power to remove the party in question as a beneficiary.”

7. Premarriage Property

a. Our law does not treat assets brought into the marriage in the same manner as inherited orgifted property. That property was brought into the marriage is only a factor to be

-26-

considered in determining an equitable property division under Section 598.21(1)(b). InIn re Marriage of Garst, 573 N.W.2d 604 (Iowa App. 1997), the Court of Appeals held thatthe wife should receive a substantial share of the assets even though the parties= net worthshad declined during the marriage and virtually all of the remaining assets had been broughtto the marriage by David: AOne factor the court considers in making an equitable divisionof property is what each party brought into the marriage. See Iowa Code Section598.21(1)(b) ... the statute also directs us to consider contributions to a marriage indetermining what each party receives upon the dissolution of the marriage. See Iowa CodeSection 598.21(1). This factor draws considerable attention when premarital assets haveappreciated in value and the dispute is over how much of the assets with the attendantappreciation will be divided. However, when the value of premarital assets remainsconstant or decreases during the marriage, the same statutory factor -- the contribution ofthe parties -- is considered. The change in value of the asset is not critical to the analysis.@ Garst at 606-607.

In re Marriage of Kinser, No. 2-166/No. 11-0169 (Iowa App. 2012). Both Mark andAmy brought assets into their thirteen-year marriage, though the value of Mark's propertywas likely greater. Amy was heavily involved with Mark's businesses, and the two madean effort to keep their finances separate. However, Amy paid for health insurance, food,clothing, improvements to the residence, vacations, and assisted in Mark's auto racingbusiness travels. Amy's contributions allowed Mark to put his money toward additionalinvestments, business opportunities, and retirement accounts of his own. The value ofproperty brought to the marriage is only a factor to consider along with the other relevantfactors to determine an equitable property division. In re Marriage of Brainard, 523N.W.2d 611 (Iowa Ct. App. 1994) . The length of the marriage is a major factor (In reMarriage of Hass, 538 N.W.2d 889 (Iowa Ct. App. 1995); and the tangible and intangiblecontributions of each party are considered. In re Marriage of Grady-Woods, 577 N.W.2d851 (Iowa Ct. App. 1998). Marriage does not come with a ledger. Considering thecharacteristics and apparently disparate value of their premarital assets, as well as theindependent role of each spouse in the marriage, the Court approved the district court'saward of net assets to Mark of $1,200,548.13 and $236,520.05, plus Mark's retirementaccounts, to Amy, resulted in an equitable property distribution in this case.

b. However, the court often treats pre-marriage property differently than assets acquiredduring the marriage. "Property brought into a marriage by one party need not necessarilybe divided. In re Marriage of Lattig, 318 N.W.2d 811, 815-16 (Iowa App. 1982)." In reMarriage of Johnson, 499 N.W.2d 326 (Iowa App. 1993). The court distinguishedbetween the $4,500.00 of tools brought into the marriage from the $500.00 of toolsacquired during the marriage and granted the husband a $4,500.00 greater share in theproperty distribution.

c. In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). Donna’s premarital annuity andRay’s retirement savings acquired prior to marriage were not separate property, not to beconsidered part of the marital assets. “All property of the marriage that exists at the timeof the divorce, other than gifts and inheritances to one spouse, is divisible property. Id.(citing Iowa Code § 598.21(1) (2003)). In re Marriage of Brainard, 523 N.W.2d 611, 616(Iowa Ct.App.1994). The trial court may place different degrees of weight on thepremarital status of property, but it may not separate the asset from the divisible estate andautomatically award it to the spouse that owned the property prior to the marriage.

In re Marriage of Nevins , No. 2-544/11-1541 (Iowa App. 2012). Life insuranceproceeds from the death of Nancy’s first husband were inherited property. See In re

-27-

Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000). However, these funds werecommingled with marital assets when she purchased a home by during the marriage,making a $25,000.00 down payment with the life insurance money. When she sold thathome on contract, she received $10,000.00, which she used as a down payment and forremodeling of another house she purchased with Lyle, her second husband. Nancy alsoreceived $15,783.08 in interest and $15,710.04 in principal when the balance on thecontract came due. Multiple factors must be considered in determining whether to divideinherited property, including (1) contributions of the parties toward the property, its care,preservation, or improvement; (2) the existence of any independent close relationshipbetween the donor or testator and the spouse; (3) separate contributions by the parties totheir economic welfare to whatever extent those contributions preserve the property foreither of them; (4) special needs of either party; and (5) any other matter which wouldrender it plainly unfair to have the property set aside for the exclusive enjoyment of thedevisee. In re Marriage of Liebich, 547 N.W.2d 844 (Iowa Ct. App. 1996). Here, theCourt held that it was equitable to set off the original $25,000.00 Nancy inherited and usedas a down payment on the first home, but declined to set aside any additional amountattributable to appreciation or interest because the evidence in the record does not providea basis to calculate which portion of those funds remain.

8. Appreciation of Value of Separate Property

a. The appreciation in value of separate property often requires detailed investigation andanalysis by the Court. "[T]he division of property is based upon each marital partner'sright to a just and equitable share of property accumulated during the marriage as a resultof their joint efforts." In re Marriage of Oakes, 462 N.W.2d 730 (Iowa App. 1990); but seeIn re Marriage of Campbell, 623 N.W.2d 585 (Iowa App. 2001) in which Oakes=concentration on joint contributions was overruled. See also In re Marriage of Johnson,455 N.W.2d 281 (Iowa App. 1990).

b. Barring special circumstances, when an inheritance is used to buy property, anyappreciation or loss in the value of the property may be characterized as marital property. In re Marriage of White, 537 N.W.2d 744 (Iowa 1995).

c. Several factors must be considered in determining an equitable division of property ownedprior to the marriage and appreciated during the marriage: (1) Atangible contributions ofeach party@ to the marital relationship, including homemaking; (2) whether the apprecia-tion of property is due to fortuitous circumstances or the efforts of the parties; (3) thelength of the marriage; and (4) the statutory factors specified in Section 598.21(1). In reMarriage of Grady-Woods, 577 N.W.2d 851 (Iowa App. 1998).

d. However, in In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007), the Supreme Courtseemed to reject the Grady-Woods approach and divided the appreciation of all premaritalassets equally. The Court said “. . . marriage does not come with a ledger. See In re Marriage of Miller, 552 N.W.2d 460, 464 (Iowa Ct.App.1996). Spouses agree to acceptone another “for better or worse.” Each person's total contributions to the marriage cannotbe reduced to a dollar amount. Nor do we find it appropriate when dividing property toemphasize how each asset appreciated-fortuitously versus laboriously-when the partieshave been married for nearly fifteen years.”

In re Marriage of Payne, No. 2-976 /12-0842 (Iowa App. 2013). Warren and Brookemoved in together in 2006 and were married in 2008. Before the marriage, Warren's fatherpurchased property for him; and Warren built a new home on the property between 2006

-28-

to 2008. Both the home and the mortgage were in Warren's name only. During themarriage, Warren built a two-car garage on the property. The Court found that mortgagepayments were made from the parties’ marital funds, that Brooke helped out with homeimprovements, including building the deck and putting in fixtures; and that her brotherhelped build the garage. The home's equity increased by a total of $15,000 during thethree years the parties were married. Despite the short duration of the marriage, the Courtfound that Brooke should receive one-half of the increase in the equity of the maritalhome. All property of the marriage that exists at the time of the divorce—other than giftsand inheritances to one spouse—is divisible property. In re Marriage of Sullins, 715N.W.2d 242, 247 (Iowa 2006). Divisible property includes not only property acquiredduring the marriage by one or both of the parties, but also property owned before themarriage by one of the parties. Id. The fact that one party brings certain property into themarriage is a factor to be considered, together with all of the other factors. See In reMarriage of Campbell, 451 N.W.2d 192, 195 (Iowa Ct. App. 1989)

9. Retirement and Pension Plans

a. General Principles

(1) Iowa Code Section 598.21(1)(I) requires the Court to consider pension benefits,vested and unvested, of each party in determining the property distribution. Inre Marriage of Johnston, 492 N.W.2d 206 (Iowa App. 1992). See also In reMarriage of Imhoff, 461 N.W.2d 343 (Iowa App. 1990). Our Courts have becomeincreasingly aware that pension benefits are often among the most valuable assetsa couple accumulates during their marriage.

(2) However, where the marriage is brief, each party had separate retirement plansestablished before the marriage, and no pension plans were depleted or diminishedduring the marriage, equity does not require an equal division of pension assetsaccumulated during the marriage. In re Marriage of Knust, 477 N.W.2d 687(Iowa App. 1991). See also In re Marriage of Campbell, 451 N.W.2d 192 (IowaApp. 1989).

b. Methods of Compensation for Pensions

(1) Alimony

Social security disability benefits, like military disability benefits, are notcompensation for past services rendered, like a pension, and will not beconsidered an asset in the property division. However, like veterans disabilitypayments, social security disability will be considered in the equitable granting ofalimony or support. In re Marriage of Miller, 524 N.W.2d 442 (Iowa App. 1994). See also, In re Marriage of Williams, 449 N.W.2d 878 (Iowa App. 1989)[veterans disability benefits].

(2) Present Valuation

One method used by Iowa Courts in disposing of pensions as part of the propertydivision is to value the pension interest based on its current worth or present value. This method is generally used where sufficient information, especially accountantor actuary testimony, is available, and the parties have sufficient assets other than

-29-

the pension to permit a lump-sum property settlement or when benefits will bereceived in the distant future.

(a) In re Marriage of Fidone, 462 N.W.2d 710 (Iowa App. 1990). The Court of Appeals tookjudicial notice of the value of the husband's employment benefits to affirm the award ofa greater share of the home equity to the wife.

(b) However, expert valuations can vary widely, and courts have difficulty choosing betweendivergent technical arguments. AThe substantial difference in valuations fixed by expertsin the field bring us to the conclusion that the Decree should be modified by providing forthe payments out of future benefits when received.@ In re Marriage of Scheppele, 524N.W.2d 678, 680 (Iowa App. 1994). The husband was awarded 50% of the marital portionof the wife's pension, and she was awarded more of the other assets.

(3) Division of Pension – Percentage Method

(a) In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). There are two accepted methodsof dividing pension benefits: the present-value method and the percentage method. Additionally, there are two main types of pension plans: defined-benefit plans anddefined-contribution plans. Although both methods of dividing pension benefits can beused with both types of pension plans, it is normally desirable to divide a defined-benefitplan by using the percentage method because determining the present value of adefined-benefit plan requires the testimony of an actuaries or accountants, and often thepensioner cannot pay a lump-sum amount equal to the present value of a defined-benefitplan.

(b) Increasingly, the preferred method of handling a pension benefit is to divide the planthrough a Qualified Domestic Relations Order which, in essence, separates the pensioninto two separate accounts. AAlthough [the Present Value Method] has the advantage ofimmediate distribution, it also has several disadvantages. Valuation of pension iscomplicated (especially when the plan is unvested) and requires the services of an actuary. Moreover, the financial obligation resulting from a lump sum payment is often beyond thepensioner=s present economic ability to pay.@ In re Marriage of Benson, 545 N.W.2d 252,255 (Iowa 1996). See also In re Marriage of McLaughlin, 526 N.W.2d 342 (Iowa App.1994); In re Marriage of Kurtt, 561 N.W.2d 385 (Iowa App. 1997).

(c) In re Marriage of Duggan, 659 N.W.2d 556 (Iowa 2003) In addition to granting thespouse one-half of the pension benefit earned during the marriage, the Court required theHusband to name his former wife as his designated beneficiary for one-half of thesurviving spouse benefit and one-half of any cost-of-living increases because only bygiving her survivorship rights as to her share of the payments can we ensure that she willreceive her one-half share of the pension plan.

(d) However, note that surviving spouse benefits are recognized as a separate property rightfrom the underlying pension benefits [In re Marriage of Davis, 608 N.W.2d 766, 770-71(Iowa 2000)]. In In re Marriage of Estrada, 2007 WL 914029 (Iowa App.) the non-pensioned spouse was denied the surviving spouse benefit because the decree andstipulation did not require designation of Wendy as a surviving spouse.

(e) The division of pension rights is only a part of the overall scheme of equitable division. In In re Marriage of Fall, 593 N.W.2d 164 (Iowa App. 1999), the court awarded all of thewife=s pension benefits to her because the husband left the marriage with a substantially

-30-

greater net worth because of his receipt of substantial inherited property which reduced hisneed for retirement benefits.

In re Marriage of Terry, No. 2-347/11-1903 (Iowa App. 2012). Troy did not contributeto his retirement savings plan during the marriage. However it grew from $53,006.48 to$84,375.42 during the marriage. The Court awarded half of the increased value,$15,684.47, to Angie. The Court found that the appreciation was a marital asset. Individing appreciation of premarital property, it does not matter whether the property hasappreciated fortuitously or by the efforts of the parties. In re Marriage of Fennelly, 73,7N.W.2d 97 (Iowa 2007). Everything owned by the parties is subject to division exceptgifts and inheritances, regardless of a distinction between "marital" or "pre-marital"property.

In re Marriage of Reineke , No. 3-370/12-1375 (Iowa App. 2013). Tony argued that thecourt should have only divided the portions of the parties' retirement accounts accumulatedsince the date of their marriage. They had cohabited for thirteen years before theirmarriage. Debra argued the district court was correct in using the full amounts because theaccounts were created during the couple's entire twenty years of being together. The Courtnoted that Iowa is an equitable distribution state meaning "courts divide the property ofthe parties at the time of divorce, except any property excluded from the divisible estateas separate property, in an equitable manner in light of the particular circumstances of theparties." In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Therefore,pensions are divisible marital property regardless of whether they existed before themarriage. The trial court’s fifty-fifty split of the total accounts in this case was approvedbecause the parties did not contribute to their retirement accounts until they begancohabitating.; and the court was not prohibited from including Tony's premaritalcontributions to his pension because in this case those contributions were attributable tothe parties' joint efforts. See In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996).

(f) Federal legislation has permitted this third alternative to the Court in disposing of apension asset. The Uniform Services Former Spouses' Protection Act,Pub. L. No. 97-252,96 Stat. 730, codified in part at 10 U.S.C. Section 1408; the Civil Service RetirementBenefit Act Amendments of 1978, 22 U.S.C. Section 4054; the Retirement Equity Act of1984, Pub. L. No. 98-397; and the Railroad Retirement Act of 1986 have given the statecourts the power to divide federal pensions and all private pensions between the spousesin a dissolution of marriage action if strict, formal requirements followed.

[1] Hisquierdo v. Hisquierdo, 439 U.S. 572, 590-91, 99 S.Ct. 802 (1972) bars statecourts from dividing Social Security or Railroad Retirement Tier I benefits,directly or indirectly, in formulating the economic terms of dissolution decrees. However, in In re Marriage of Boyer, 538 N.W.2d 293 (Iowa 1995), the courtapproved an unequal division of property favoring the wife, based in part upon afinding that the present value of the wife's social security benefits was $22,539.00,while the husband's benefits were worth $87,861.00.

[2] In re Marriage of Crosby, 699 N.W.2d 255 (Iowa 2005). Clayton, as an employeeof the United States Postal Service, participates in the postal service retirementsystem, which is a government program for postal employees in lieu of socialsecurity. The district court allowed Jean one-half of Clayton's pension, accumu-lated during the marriage. The court of appeals reduced Jean's share totwenty-five percent because she is younger, healthier, has a longer expected work

-31-

life, and she will have her own social security benefits on which to draw. Also,Clayton has no comparable claim to Jean's social security benefits.

(g) In what has become a landmark case, In re Marriage of Benson, 545 N.W.2d 252 (Iowa1996), the Supreme Court prescribed a new formula for dividing pensions using thePercentage Method. The non-employee spouse=s share of the pension is determined byfirst calculating the marital share of the pension by computing a fraction, the numeratorbeing the number of years during the marriage the employee spouse accrued pensionbenefits and the denominator being the total number of years the benefits accrued beforethe benefits are Amatured@ (immediately available). The marital share of the pension isthen multiplied by the non-employees= share of the marital assets (usually 50%). Finally,this second figure is multiplied by the total accrued monthly pension benefit at the timeof Amaturity@ of the pension, usually at the time of the employee spouse=s retirement. Theequation can be shown as follows:

# of years employee was both Non-employee = married & covered by pension X 50% X Value of Monthly Spouse=s Share # of years covered by Benefit at Retirement

Plan up to maturity (retirement)

In re Marriage of Wahner, No. 2-514/11-1913 (Iowa App. 2012). There are two generalways Iowa courts divide pensions: the present value method and the percentage method. In re Marriage of Benson, 54,5 N.W.2d 252 (Iowa 1996). In the present value method,a sum certain of the present value of future pension benefits is determined, and a lump sumis immediately payable. The percentage method awards the spouse one-half of the percentage of the pension payments which were earned during the marriage when thepension has fully matured. Jim and Linda’s marriage was dissolved in 1992, but noQualified Domestic Relations Order was filed. When Jim retired in 2011 the mistake wasdiscovered. Linda maintained that the QDRO should be prepared to split Jim's pensionaccording to the percentage method, or Benson formula. Jim claimed the order violatesthe original decree of dissolution between the parties by giving Linda credit for years Jimcontinued to work after the decree. Jim wanted to give Linda 50% of the pension benefithe would have received if he had ceased working immediately after the divorce and starteddrawing benefits at age sixty-five, or $376.33 per month. The Court held that the onlyequitable way to divide the pension in this case is through the percentage value method. Linda may receive an indirect benefit from years worked by Jim subsequent to the date oftheir dissolution, but if Linda had received her portion of the pension as a lump sum underthe present value method at the time of the dissolution, she would have had the use of thatmoney and been able to spend or invest that sum. As a result of the delay in heropportunity to use those proceeds, Linda will share in any change in the value of thepension she was awarded at the time of the dissolution.

(h) Payments required to equitably divide pension benefits are property settlement payments,not alimony, and are, therefore, not to terminate on remarriage or cohabitation and are notmodifiable. In re Marriage of Huffman, 453 N.W.2d 246 (Iowa App. 1990). In addition,the spouse=s share is payable as soon as the benefits are received. In re Marriage ofRobison, 542 N.W.2d 4 (Iowa App. 1995).

(i) A disability pension is a marital asset, available to benefit the spouse and children as wellas the disabled employee. However, a disability pension, unlike a retirement pension,is to replace income that would have been earned had the employee not been injured, notcompensation for past services and the husband=s child support was based on his total

-32-

income. Therefore, the Court awarded the disability portion of the pension to the husbandbut ordered that the wife would begin to receive one-half of the marital share of thepension when the husband attained the age of 55, the earliest retirement age under thepension plan. In re Marriage of O=Connor, 584 N.W.2d 575 (Iowa App. 1998).

(j) In Schultz v. Schultz, 591 N.W.2d 212 (Iowa 1999), Iowa followed the majority rule thatdivorce or dissolution per se does not void the designation of a named spouse of a lifeinsurance policy or a retirement account. The mere award of the policy or account to oneparty in a Decree or stipulation does not cancel the other=s rights as beneficiary. Additional language must be included in which the beneficiary party=s expectancy interestis canceled or waived.

(k) In re Marriage of Retz, No 2-324/11-0447 (Iowa App. 2012). Two-thirds of the parties'assets were in retirement accounts, one-fifth in real estate, and most of the rest in personalproperty. The trial court required Drew to make a property division equalization paymentto Carmel in the amount of $74,135. The only significant "disposable" property the courtawarded Drew was a vacation home worth about $62,000. There was no evidencepresented as to what tax consequences Drew might incur if he were to sell the property. In In re Marriage of Witten, 67,2 N.W.2d 768 (Iowa 2003), nearly eighty-five percent ofthe parties' assets were in retirement accounts or real estate; and the supreme courtdetermined a cash equalization payment instead of a retirement account transfer withoutconsidering the tax consequences was unfair. Here, the Court concluded that theequalization payment of $74,135 should be made by first balancing the parties' retirementaccounts with a transfer of $41,237 from Drew's 401(k)" to Carmel followed by a cashpayment of $32,898 from Drew to Carmel once the net proceeds from the sale of thefamily home were available. A balance transfer avoids tax consequences of withdrawingfunds from a retirement account.

10. Division of Other Assets

a. Business Interests

(1) As an exception to the general trend 50/50 property divisions, courts haveapproved awards of less than 50% of farms and small business to nonoperatingspouses to permit the operating spouse to retain ownership and to manage the farmor business as a single economic unit. In re Marriage of Callenious, 309 N.W.2d510 (Iowa 1981).

(2) However, where there are enough other assets to permit an almost equal split, theCourt will do so. In fact, in In re Marriage of Lacaeyse, 461 N.W.2d 475 (IowaApp. 1990), the wife received more of the net assets than the husband. The Courtof Appeals ruled that the division was equitable because the husband got all of theincome-producing farmland and equipment.

(3) In dividing the property, the Court should not ordinarily force the parties into acontinuing business relationship after the divorce. In re Marriage of Lundtvedt,484 N.W. 2d 613 (Iowa App. 1992).

(4) The Trial Court is given much leeway in the difficult task of valuing closely heldbusinesses. In re Marriage of Steele, 502 N.W.2d 18 (Iowa App. 1993). See Inre Marriage of Hitchcock, 309 N.W.2d 432, 435-36 (Iowa 1981).

-33-

(a) However, the Court cannot delegate this responsibility to the partiesthrough a private auction between parties. In re Marriage of Dennis, 467N.W.2d 806 (Iowa 1991).

(b) In In re Marriage of Coulter, 502 N.W.2d 168 (Iowa App. 1993), theCourt approved a valuation of a closely-held corporation which includeda 30% discount for the husband's minority interest and the division ofonly the appreciation in value of the business interest from the date of themarriage to the date of the divorce.

(c) The share of the value dependent upon post-dissolution services should not beincluded in the allocation of assets. In re Marriage of Russell, 473 N.W.2d 244(Iowa App. 1991). Also, the good will of a professional practice should not bevalued because it is dependent upon the ability of the professional to continue hisor her profession, and is based upon the professional's future earning potential. In re Marriage of Bethke, 484 N.W.2d 604 (Iowa App. 1992).

(d) In re Marriage of Keener, 728 N.W.2d 188 (Iowa 2007). Anecdotal evidence(even from an expert) is simply an insufficient basis upon which to determine thefair market value of intangible assets. Therefore, the Court found that the districtcourt erred by speculating as to the value of these assets; and reduced their value.

(5) In re Marriage of Rhinehart, No. 2-1068 / 12-0287 (Iowa App. 2013). In 2004, Scottand Deborah Rhinehart’s dissolution finances were first determined. The Supreme Courtaffirmed the decision in 2005; but in 2008, the district court found that Scott hadcommitted fraud by withholding information about contingent fee cases from thoseappraising his law practice. In 2010, the case returned to the district court for a new trialon the value of the law practice as of September 2003 and how the correct practice valuewould affect the property division, debt allocation, and alimony. The court found Scott'sannual income to be $200,000, an increase of approximately $77,000 from the originaldissolution decree; found that Deborah’s alimony ward in 2004 should have been higher;and required Scott to pay accrued alimony in the amount of $51,500. However, the districtcourt concluded the previously undisclosed contingency fee cases had no effect on thevalue of the law firm. Scott's expert testimony was followed because he used an assetvaluation method. Both of Deborah's experts used the income-based approach thatanalyzed Scott's earning capacity to value the law practice. Because the court consideredScott's earning capacity in the increased alimony award, the experts were “double-dippping” when they chose to also use Scott’s earning capacity again in valuing the lawpractice. See In re Marriage of Hogeland, 448 N.W.2d 678, 681 (Iowa Ct. App. 1989).

b. Family Residence

(1) Iowa Code Section 598.21(1)(g) requires the Court to consider "the desirability ofawarding the family home or the right to live in the family home for a reasonable periodto the party having custody of any children." the most common disposition of the familyresidence is to award the family home to the custodial parent while granting thenoncustodial parent a continuing ownership interest or a lien against the property.

(2) The attorney drafting a lien against real estate must be careful in the dissolution decree toprovide that the lien is made subject to future unpaid child support so that any arrearagewill be deducted from the amount of the lien. In Smith v. Brown, 513 N.W.2d 732 (Iowa1994).

-34-

(3) However, though it is desirable to award the family home and contents to the physicalcustodian of the children, here, the mother and children had resided in the homestead foronly six months prior to the separation and the wife's business and its assets were part ofthe homestead. Therefore, the Court ordered the house and contents sold and the proceedsdivided. In re Marriage of Hoffman, 493 N.W.2d 84 (Iowa App. 1992).

(4) A party=s ability to meet the financial obligations of a dissolution decree is a relevant factorto consider in determining an equitable division of property. In re Marriage of Siglin, 555N.W.2d 846, 849-50 (Iowa App. 1996). See In re Marriage of Lovetinsky, 418 N.W.2d88, 89-90 (Iowa Ct.App.1987) [required sale of the parties' home because it was unclearthat the wife could "afford to maintain the residence and its attendant expenses@].

c. Personal Injury Claim

The proceeds of a personal injury case are divided according to the circumstances of each case. Settlement proceeds do not automatically belong to either party. However, here, where thehusband sustained a permanent disability and the wife had a greater earning capacity, the husbandwas granted the claim for his personal injuries and the wife was limited only to pursuing her claimfor consortium. In re Marriage of Pasencia, 541 N.W.2d 923 (Iowa App. 1995).

Reis v. Stowers No. 2-398/11-0790 (Iowa App. 2012). In In re Marriage of McNerney, 417N.W.2d 205 (Iowa 1987), the Supreme Court considered the question of whether proceeds of apersonal injury claim are marital assets. The Court accepted the "mechanistic approach," to decidethese questions: Settlement proceeds do not automatically belong to either party. Instead theproceeds should be divided on a case-by-case basis. The Court rejected the “analytic approach”in which pain and suffering damages are automatically set off as the separate property of theinjured party and lost wages and other economic loss awards are considered marital property. However, in the present case, the Court strongly followed “analytic” factors. Jan received a net$1,500,000 award from a sexual harassment lawsuit which was deposited to the parties’ Vanguardaccount. The account had a previous balance of $674,000. At the time of the trial, the Vanguardaccount had a balance of $1,314,660; and the court awarded Jan $861,633 of the account andawarded Dean the remaining $453,026. Jan argued that she should receive 86% of the accountbecause this was the share of the non-wage, pain and suffering damages remaining in the account. However, the Court accepted Dean’s analysis that showed that Jan's lost wages and benefits were78% of the funds initially deposited to the account. Therefore, the Court decided that 78% of thesettlement funds remaining in the Vanguard account at the time of trial--$716,440—wasattributable to lost wages; and $202,073 was attributable to the pain and suffering damages. Onthis basis, Jan was entitled to an additional $100,000 from the Vanguard account.

d. Miscellaneous Assets

(1) Lottery Winnings/Book Royalties. Iowa Courts have ruled that the following items areassets subject to division: lottery winnings [In re Marriage of Swartz, 512 N.W.2d 825(Iowa App. 1993)]; book royalties [In re Marriage of White, 537 N.W.2d 744 (Iowa1995)];

(2) Advanced Degree. An advanced education degree is not considered a marital asset. SeeIn re Marriage of Wagner, 435 N.W.2d 372 (Iowa App. 1988). However, the potentialincreased earnings of the person earning the advanced degree is a factor to be consideredin determining the equitable division of the property. In re Marriage of Plasencia, 541N.W.2d 923 (Iowa App. 1995).

-35-

(3) Bonus . A bonus due to husband was considered by the court in its income calculationsin determining alimony, college expense contributions, and the child support. Therefore,the court refused to grant the wife a share of the bonus as part of the property division. InRe Marriage of O=Rourke, 547 N.W.2d 864 (Iowa App. 1996). See also Hayes v. Hayes, No. 2-279/11-1847 (Iowa App. 2012).

(4) Workers Compensation. In re Marriage of Schriner, 695 N.W.2d 493 (Iowa 2005). TheSupreme Court, in this case of first impression, adopted the"mechanistic approach" todivide a workers' compensation award. The award is property subject to division if theaward was received, or the right to receive the award accrued, during the marriage. However, the Court ruled that workers' compensation proceeds received after the divorceare separate property of the injured spouse.

(5) Wedding Ring. In In re Marriage of Payne, No. 2-976 /12-0842 (Iowa App. 2013),Brooke's engagement ring was purchased with the parties' joint funds; and Warren arguedthat its value should be equitably divided as part of the property divsion. The Court ofAppeals disagreed. "[A]n engagement ring given in contemplation of marriage is animpliedly conditional gift . . . ." Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct. App.1990). Once the parties are married, the gift is completed. See id. Accordingly, the ring isnot subject to a property division. See Iowa Code § 598.21(6).

(6) Pets. In In re Berger, No. 3-148/12-1389 (Iowa App. 2013), Joe and Cira fought forcustody of their dog, Max. Max was licensed to Cira; the "GEO tracker" device associatedwith Max is in Cira's name alone; Cira took Max to training classes and got Max medicalattention, even though he was in Joe's care at the time; and Cira also has physical care ofthe parties' youngest child, who has known Max all of her life. A dog is personal property. In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984). While a family petshould not be put in a position of being neglected or abused, courts do not have todetermine a pet's best interests when making a properly division. Id.; but see Housemanv. Dare, 966 A.2d 24, 28 (N.J. 2009) (recognizing pets have special "subjective value" totheir owners); Eric Kotloff, Note, All Dogs Go to Heaven . . . Or Divorce Court: NewJersey Un"leashes" a Subjective Value Consideration to Resolve Pet Custody Litigationin Houseman v. Dare, 55 Vill. L. Rev. 447, 447-49 (2010) (recognizing while current legalframework does not coincide with modern public sentiment about pets, the law ischanging). The Court of Appeals confirmed the district court’s award of Max to Cira.

D. CHILD SUPPORT

1. Interstate Jurisdiction for Child Support Orders

a. The Full Faith and Credit for Child Support Orders Act (FFCCSOA) is federallegislation which controls support orders throughout the U.S. under the authorityof the Supremacy Clause of the U.S. Constitution. 28 U.S.C. Section 1738B(e)(2)provides that a court of any state other than the original issuing state may modifya child support order only if: (1) the issuing state is no longer the state ofresidence of the child or any other individual contestant; or (2) the parties mustfile a written consent to another state assuming jurisdiction. In re Marriage ofZahnd, 567 N.W.2d 684 (Iowa App. 1997). See also In re Marriage of Carrier,576 N.W.2d 97 (Iowa 1998).

-36-

b. Chapter 252K, the Uniform Interstate Family Support Act (UIFSA), adopted inIowa in 1997, discussed in more detail later in the section on child supportenforcement, adopts jurisdiction principles similar to FFCCSOA

2. Child Support Guidelines

a. Guidelines. The Supreme Court establishes Child Support Guidelines to be usedby courts in establishing child support obligations. Effective, July 1, 2009 theSupreme Court adopted the “pure income shares” method of calculating childsupport.

(1) The Pure Income Shares Guidelines provide specific guidance for parentswith combined incomes from $0 through $25,000 per month. Noncustodial parents with low incomes qualify for the low-incomeadjustment section of the Schedule of Basic Support Obligations, basedupon their incomes alone. Other parents’ child support obligations arebased upon the combined incomes of both parents.

(2) The proper child support amount for persons with combined net incomesin excess of $25,000 per month " ... is deemed to be within the sounddiscretion of the court ... The amount of support payable by parents with monthly combined incomes of $25,001 or more shall be no less than thedollar amount as provided in the Guidelines for parents with a monthlyincome of $25,000.

(3) The Guidelines grant a Qualified Additional Dependent Deduction, to aparty who can demonstrate a legal obligation to support children otherthan those affected by the current support order. The monthly deductionfor qualified additional dependents range from 8% for one child [up to$800 per month to 16% [up to $1,600 per month] for five or morechildren.

(4) The Guidelines also grant an Extraordinary Visitation Deduction tononcustodial parents whose court-ordered visitation exceeds 127overnights per year, he or she shall receive a credit to the guidelineamount as follows: 128 - 147 = 15% credit; 148 - 166 = 20% credit; and167 or more = 25% credit.

In re Marriage of Jones, 653 N.W.2d 589 (Iowa 2002), the parties= stipulated at trial thatFather would qualify for the extraordinary visitation credit. However, when the decreewas finally prepared the minimum scheduled overnights were less than 127; and Mothersought to eliminate the credit on appeal. The Supreme Court found the decree does nothave to specify the dates. The precise timing of the visitation can be left to the parties.

(5) The Guidelines establish a guideline method for computing taxes:

(a) An unmarried parent must be assigned either single or head of household filingstatus: household head if one or more of the mutual children reside with theparent;

(b) A married parent shall be assigned married filing separate status;

-37-

(c) If the parties have joint physical care, an unmarried parent shall use the head ofhousehold status and a married parent shall use the married filing separate status;

(d) The standard deduction shall be used;

(e) Each parent shall receive a personal exemption plus that for each child residingwith him or her, unless allocated to the noncustodial parent;

(f) Earned income tax credit income is ignored; and

(g) The court may consider adjusting the support payment if the amount of taxesactually paid differs substantially from the amount calculated under the guidelinemethod.

(6) In both joint physical care cases and split or divided care cases, the supportobligations of both parties are calculated, and the net difference is paid to the partywith the lower child support amount.

(7) New Federal requirements are incorporated in the Guidelines which require thatan Order for Medical Support must be ordered in every case.

(a) If a parent has medical insurance available at a “reasonable cost” [whichis determined by a provided table], the parents are required to share theincremental premium cost of covering the child through an adjustmentto the calculated base child support.

(b) If neither parent has medical insurance available at a “reasonable cost”,if appropriate, the court shall order cash medical support of from 1% to5% of the noncustodial parent’s income.

( c ) The custodial parent is required to pay the initial medical expenses of thechildren not covered by insurance: the first $250.00 per year for eachchild up to a maximum of $800 per year for all children. Thereafter, theuncovered expenses are to be divided by the parents in proportion to theirrespective incomes.

b. Apply to Every Case

The Supreme Court order requires that the guidelines be considered in every case. TheGuidelines provide that "The court shall not vary from the amount of child support whichwould result from the application of the guidelines without a written finding that theguidelines would be unjust or inappropriate as determined under the following criteria:

(1) Substantial injustice would result to the payor, payee or child;

(2) Adjustments are necessary to provide for the needs of the child and to do justicebetween the parties, payor, or payee under the special circumstances of the case;and

(3) Circumstances contemplated in Iowa Code Section 234.39 (1989) [applies to fostercare services only].

-38-

3. Determination of Gross Income

a. Affirmative Duty to Provide Information

(1) "...[B]efore the amount of support can be fixed in accordance with the Guidelines,an honest and complete revealment of income must be made." In re Marriage ofLux, 489 N.W.2d 28, 30 (Iowa App. 1992).

(2) "It is not the Court's responsibility to search the record for the proper figures to usefor applying the child support guidelines. We will not do so." In re Marriage ofHansen, 514 N.W.2d 109 (Iowa App. 1994). The child support payor complainedthat the trial court varied from the guidelines without articulating reasons, butprovided no information to the court as to how he claimed the child support shouldhave been calculated.

b. Average Fluctuating Income

(1) "The Court must determine the net monthly income from the most reliable evidencepresented. This often requires the Court to carefully consider all of the circum-stances relating to the parent's income. Where the parent's income is subject tosubstantial fluctuations, it may be necessary to average the income over reasonableperiod when determining current monthly income." In re Marriage of Powell, 474N.W.2d 531, 534 (Iowa 1991). See also In re Marriage of Knickerbocker, 601N.W.2d 48 (Iowa 1999) Here, the Supreme Court approved using a four-yearaverage of a farmer=s income in determining his income available for child support.

(2) Non-recurring income should not be considered. In re Marriage of Will, 602N.W.2d 202 (Iowa App. 1999). Since the interest from the proceeds of the sale ofa homestead, now reinvested in a new home, is not recurring income, the DistrictCourt should not have included the entire amount of the interest in computing thefather=s income for the purposes of calculating child support guideline income.

(3) AThe definition of income as used in the Guidelines is most readily adaptable to theparent employed for a set monthly wage...the definition of income in theGuidelines is not easily applied to the earnings of persons such as [the father] whoare compensated for their services through commissions and who experiencemonth-to-month and/or year-to-year fluctuations in income." In re Marriage ofMcQueen, 493 N.W.2d 91 (Iowa App. 1992). See also In re Marriage of Hardy,539 N.W.2d 729 (Iowa App. 1995); In Re Marriage of Roberts, 545N.W.2d 340(Iowa App. 1996) [a lawyer=s gross income for the previous three years wasaveraged to determine his guideline gross income]; In re Marriage of Clifton, 526N.W.2d 574 (Iowa App. 1994), [refused to average the wages where unemployedduring much of one year].

(4) In re Marriage of Hagerla, 698 N.W.2d 329 (Iowa 2005). In some cases the onlyequitable way to determine income for purposes of child support is to averageincome over a period of time. In re Marriage of Cossel, 487 N.W.2d 679, 681(Iowa Ct. App. 1992). The Court of Appeals based the child support on the father=sbase pay in his current employment, rather than an average of his earnings from hisold job.

-39-

(5) In re Marriage of Retz, No 2-324/11-0447 (Iowa App. 2012). In some cases the onlyequitable way to determine income for purposes of child support is to average income overa period of time. In re Marriage of Hagerla, 698 N.W.2d 329 (Iowa Ct. App. 2005); seealso In re Marriage of Powell, 474 N.W.2d 531 (Iowa 1991). Here, Drew, vice presidentof operations for a residential contractor, argued that the court should have used his baseincome or at least his average incentive income for the past two years, not six years, incalculating his child support obligation. Drew's bonus or incentive pay is tied to sales inresidential construction and the housing market declined in 2008 and has not fullyrecovered. Therefore, the Court was faced with the task of fairly estimating his futureability to pay support. The Court concluded that using a six-year average, the courtencompassed both good and bad years. To use just Drew's base income would notaccurately reflect his income and would be inequitable to the children. To average over ashorter period could place too much emphasis on the recent decline in the housing market.

c. Overtime Pay

(1) "Overtime wages are not excluded as income. Overtime wages are within the definition ofgross income to be used in calculating net monthly income for child support purposes....[I]n circumstances where overtime pay appears to be an anomaly or is uncertain orspeculative, a deviation from the Child Support Guidelines may be appropriate. We alsoagree that a parent's child support obligation should not be so burdensome that the parentis required to work overtime to satisfy it." In re Marriage of Brown, 487 N.W.2d 331 (Iowa1992). See also In re Marriage of Heinemann, 309 N.W.2d 151, 152-53 (Iowa App. 1981).

(2) In In re Marriage of Elbert, 492 N.W.2d 733 (Iowa App. 1992), the Court included in thepayor's gross income his actual average overtime income of $7,000.00 per year over fiveyears in setting the child support amount. The Court found that the overtime had beenconsistent throughout the past five years and was not speculative or likely to decline in thefuture. See also In re Marriage of Geil, 509 N.W.2d 738 (Iowa 1993).

(3) In re Marriage of Terry, No. 2-347/11-1903 (Iowa App. 2012). Ordinarily, overtimewages are included in gross income used in calculating net monthly income for childsupport purposes, unless they are "an anomaly or uncertain or speculative." In re Marriageof Kupferschmidt, 70,5 N.W.2d 327 (Iowa Ct. App. 2005). However, a court need notadhere strictly to the guidelines regarding overtime pay if doing so results in injusticebetween the parties. Id., see also Iowa Ct. R. 9.11. History over recent years is the best testof whether such a payment is expected or speculative. Seymour v. Hunter, 603 N.W.2d625, 626 (Iowa 1999). However, some courts have held that a parent's child supportobligation should not be so burdensome that they are required to work overtime to satisfyit. In re Marriage of Brown, 48,7 N.W.2d 331 (Iowa 1992). Troy averaged over 30 hoursa week in overtime. Troy argued that he only worked such long overtime hours to supporthis family, but he worked overtime prior to his marriage and continued to work long hoursup to the time of trial. Still, the Court found that it was too burdensome to set child supportbased on an expectation of an 80-hour week and found that justice could best be served bycalculating Troy's child support obligation based on an average of his last three years ofgross income.

d. Second Job Income

In State Ex Rel. Weber v. Denniston, 498 N.W.2d 689 (Iowa 1993), the Supreme Court concludedthat second job income (in this case from the National Guard) is similar to overtime, and it should

-40-

be included to determine gross income where it is steady, not speculative and voluntary. But seeIn re Marriage of Griffin, 525 N.W.2d 852 (Iowa 1994).

e. Bonus Pay

(1) AAll income that is not anomalous, uncertain, or speculative should be included whendetermining a party=s child support obligations. When deciding whether bonuses are to beincluded in gross income, we examine the employment history of the payor over the pastseveral years to determine whether the amount of money paid from year to year wasconsistent. If so, the bonuses should be included in gross income.@ In re Marriage ofNelson, 570 N.W.2d 103 (Iowa 1997). See also In re Marriage of Lalone, 469 N.W.2d 695,698 (Iowa 1991) and In re Marriage of Pettit, 493 N.W.2d 865 (Iowa App. 1992).

(2) In Seymour v. Hunter, 603 N.W.2d 625 (Iowa 1999), the Court found that AIncome, forpurposes of guidelines, need not be guaranteed. History over recent years is the best testof whether such a payment is expected or speculative. In calculating the expected bonuses,the court should consider and average them as earnings over recent years and decidewhether the receipt of an annual payment should be reasonably expected.

(3) The Court of Appeals approved another method for handling bonus income in In reMarriage of Allen, 493 N.W.2d 273 (Iowa App. 1992). The father was required to pay apercentage of any bonus if and when received. However, noting the difficulty which wouldarise in requiring payment of the Guideline percent of the net bonus after mandatorydeductions, the Court of Appeals ordered the father to pay a smaller percentage of the totalbonus income before any deductions.

f. Incentive Pay

“Monthly Income" under the Guidelines should include "incentive pay" which had been regularlyreceived in addition to base pay. The case requires all "extra" income to be included in calculatingGuideline Support unless this would result in an injustice or require the payor to work overtime inorder to pay support. "Here, there is no problem with burdening Burge by requiring him to workadditional hours; his incentive pay is based solely on increased productivity, not overtime." StateDept. of Human Services v. Burge, 503 N.W.2d 413, 415 (Iowa 1993).

g. Value of Employee Benefits/Imputed Income

(1) The value of benefits provided to an employee (e.g. home subsidy, real estate taxes,insurance, utility, gasoline and other vehicle expenses) should be considered in determiningGross Annual Income for child support purposes. In re Marriage of Beecher, 582 N.W.2d510 (Iowa 1998); but only the after-tax value of these benefits should be added to thepayor's net salary to arrive at net income. In re Marriage of Titterington, 488 N.W.2d 176(Iowa App. 1992). See also, In re Marriage of Huisman, 532 N.W.2d 157 (Iowa App.1995).

(2) “Imputing income from an income-producing asset is analogous to imputing income to anunemployed or under-employed person based on that person=s earning capacity.@ TheCourt can impute income from sources like rent and conservation programs from asubstantial asset like a farm. State Ex Rel. Pfister v. Larson, 569 N.W.2d 512, 515 (IowaApp. 1997).

-41-

h. Nontaxable Income

(1) "The Guidelines do not limit the definition of gross income to that income reportable forFederal Income tax purposes. Although veterans' disability benefits, social securitydisability or retirement payments and worker's compensation benefits are exempt fromfederal taxes, they are properly considered as income in determining if a substantial changein circumstances has been established and in determining the amount of child support. SeeIn re Marriage of Howell, 434 N.W.2d 629, 633 (Iowa 1989) (Veterans' Retirement andDisability Benefits); In re Marriage of Stuart, 252 N.W.2d 462 (Iowa 1977) (Social SecurityDisability Payments); In re Marriage of Swan, 526 N.W.2d 320 (Iowa 1995) (Workers'Compensation Benefits). Only public assistance payments are specifically excluded asincome under our Guidelines." In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1992).

(2) The Supreme Court ruled has also ruled that social security disability benefits, whether theyare paid to the disabled parent or to the former spouse for the child shall be consideredincome to the disabled parent in determining child support under the Child SupportGuidelines. In addition, disability benefits received by the custodial parent shall be creditedto the disabled parent=s support obligation. In re Marriage of Hilmo, 623 N.W.2d 809 (Iowa2001). The dependent benefits are replacement income to the disabled parent and shouldbe considered income to that parent for the purposes of establishing child support. IowaCode Section 598.22C codifies the Hilmo rules.

(3) In re the Marriage of Belger, 654 N.W.2d 902 (Iowa 2002) extends the logic of the Hilmocase to Social Security retirement benefits. The Supreme Court ruled that the formerhusband was entitled to credit against his child support obligation reflecting dependentchild's receipt of social security dependent retirement benefits on his behalf, overrulingState ex rel. Pfister v. Larson, 569 N.W.2d 512.

(4) Deferred income may also be considered in setting child support. In re Marriage of Will,602 N.W.2d 202 (Iowa App. 1999). The Court added $4,300.00 to the father=s childsupport guideline income for the prorata amount of income earned on Series E, U.S.Savings Bonds. There is no direction in the child support guidelines for including deferredincome. However, there are circumstances that substantial investments earning deferredincome may justify an upward modification from the guidelines.

i. Contributions from Family

(1) Stepparent/Live-In Income. "[T]he support obligation of the noncustodial parent shouldnot be reduced to an amount less than that provided under the child support guidelinesbecause a stepparent or the custodial parent's boyfriend or girlfriend makes contributionsto the household. The contribution of the stepparent or boyfriend or girlfriend is onlyrelevant to the extent his or her contribution may increase the cost of the child's mainte-nance by reason of the higher standard of living the children may experience by reason ofhim or her living in the home. See In re Marriage of Mueller, 400 N.W.2d 86, 88-89 (IowaApp. 1986)." In re Marriage of Koepke, 483 N.W.2d 605 (Iowa App. 1992).

(2) Gifts from Others. Generally, financial assistance or support from sources other than asupport obligor=s income is not an appropriate consideration in determining a supportobligation. See In re Marriage of Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991)(holding that possible support available to payor father from another person is not aconsideration the district court must weigh in setting the child support award); see also In

-42-

re Marriage of Will, 602 N.W.2d 202, 206 (Iowa Ct. App. 1999) (holding that income asdefined by the guidelines does not include the income of a current spouse).

j. Business Expenses

(1) Straight-Line Depreciation. Some consideration must be given to business expensesnecessary to maintain a business or occupation. These expenses may include a reasonableallowance for straight-line depreciation. After considering these matters the Court-- wherewarranted--should adjust gross income before applying the Guidelines. Any other approachmay discriminate between wage earners and self-employed persons. In re Marriage ofWorthington, 504 N.W.2d 147 (Iowa App. 1993). See also In re Marriage of Hoksbergen,587 N.W.2d 490 (Iowa App.1998) [recalculation of a farmer=s income available for childsupport by increasing his income by $14,500 per year which he had deducted on his taxreturns as accelerated depreciation]; In re Marriage of Knickerbocker, 601 N.W.2d 48(Iowa 1999) [reasonable straight-line depreciation on farm machinery and other assetsrelated to the farm business was an expense reasonably necessary to maintain that business,and that such expenses should be considered in determining the payor=s income]; In reMarriage of Maher, 510 N.W.2d 888 (Iowa App. 1993); In re Marriage of Gaer, 476N.W.2d 324 (Iowa 1991) and In re Marriage of Cossel, 487 N.W.2d 679 (Iowa App. 1992). In Maher, Gaer, Cossel, Hoksbergen, and Knickerbocker, the courts permitted the fullamount of the straight-line depreciation as a deduction. However, in Worthington, and inIn re Marriage of Starcevic, 522 N.W.2d 855 (Iowa App. 1994), the Court's denieddepreciation deductions to avoid "paper losses" and a "windfall" of reduced child support.

(2) Other Expenses. The Court of Appeals approved the deduction of out-of-pocket businessexpenses of a self-employed person, including depreciation, postage, office expenses andpromotion, but denied the artificial deduction of 27.5 cents per mile for mileage where theself-employed person's vehicles were fully depreciated and his employer furnished gas andoil. In re Marriage of Golay, 495 N.W.2d 123 (Iowa App. 1992).

k. Appreciation in Net Worth

There may be circumstances where a substantial nontaxed increase in the net worth of thenoncustodial parent justifies a departure from the Guidelines. However, variations in market pricesof stored farm commodities owned by a farmer with modest assets does not justify a variation fromthe Guidelines. The value of farm commodities is best established when the commodity is sold. When sold, the proceeds will be reflected in income used to establish child support. In re Marriageof Cossel, 487 N.W.2d 679 (Iowa App. 1992).

l. Voluntary Income Reduction

(1) "Child support is generally not reduced because of self-inflicted or voluntary reduction inincome. In addition, parents must give their children's needs high priority and be willingto make reasonable sacrifices to assure their care. In re Marriage of Fidone, 462 N.W.2d710 (Iowa App. 1990). See also In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa1983). "The self-infliction rule applies equitable principles to the determination of childsupport in order to prevent parents from gaining an advantage by reducing their earningcapacity and ability to pay through improper intent or reckless conduct..." In re Marriageof Foley, 501 N.W.2d 497 (Iowa 1993). See also In re Marriage of McKenzie, 709 N.W.2d528 (Iowa 2006); In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa 2003); and Stateex rel. Reaves v. Kappmeyer, 514 N.W.2d 101, 10405 (Iowa 1994) [may consider thecombined incomes of the supporting parent and new partner].

-43-

(2) However, in In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998), the Supreme Courtreversed earlier cases and reduced support due to a reduction in income and earningcapacity which was the result of incarceration because of criminal activity. Althoughvoluntary, the criminal conduct was not done with an improper intent to deprive hischildren of support. See also In re Marriage of Barker, 600 N.W.2d 321 (Iowa 1999), (theearning capacity of the obligor as a prisoner is substantially less than that prior to herconviction. Therefore, she is entitled to a reduced amount of child support) and In reMarriage of Rietz, 585 N.W.2d 226 (Iowa App. 1998).

(3) Another way to reduce income is to create a false expense. Where the support payor "...isthe principal in a business that employs his or her spouse, we will look at the salary paid tohis or her spouse to determine whether the allocation is fair or if it results in a salary thatis larger than average salaries for comparable employment...absent evidence showing avalid basis for the excess salary, we will attribute that portion of the salary to the obligorspouse." In re Marriage of Aronow, 480 N.W.2d 87 (Iowa 1991).

(4) Still another strategy is to transfer assets. The Court of Appeals ruled that the income fromassets transferred to payor=s wife should be considered in setting child support. AIncomeas defined by the child support guidelines does not include income of a current spouse ...[however], it is reasonable to consider the income Roger=s current wife receives on thegifted property not as part of Roger=s net monthly income as defined by the guidelines, butas a factor that justifies deviating from the guideline amounts.@ In re Marriage of Will, 602N.W.2d 202 (Iowa App. 1999).

(5) However, before earning capacity can be used to calculate child support, rather than actualearnings, the Guidelines require the Court to enter findings that use of actual income wouldbe inequitable because: (1) substantial injustice would otherwise result to the payor, payeeor child; or, (2) that adjustments are necessary to provide for the needs of the child or to dojustice between the payor or the payee. In re Marriage of Salmon, 519 N.W.2d 94 (IowaApp. 1994). See also Iowa Dept. of Human Services v. Gable, 474 N.W.2d 581 (Iowa App.1991).

(6) The Court will not always find that the reduction of income creates an in justice. Thoughthe mother had worked full-time during her first marriage, the Court found A ... as a motherof four, it was eminently reasonable for her to choose to spend half of her working hoursparenting the children, including the two from the parties= marriage.@ In re Marriage ofNelson, 570 N.W.2d 103 (Iowa 1997). See also In re Marriage of Montgomery, 521N.W.2d 471 (Iowa App. 1994) and In re Marriage of Bonnette, 492 N.W.2d 717 (Iowa App.1992).

(7) However, the Court of Appeals clarified its position with regard to a parent declining towork outside the home: AWhile we respect a parent=s wish to remain at home with his or herchildren, we cannot look at this fact in isolation in determining earning capacity...We rejectany suggestion in In re Marriage of Bonnette ...to the contrary.A Moore v. Kriegel, 551N.W.2d 887, 889 (Iowa App. 1996).

(8) In addition, the Court may disregard earning capacity where reduction of income istemporary or for a good reason. The custodial parent=s decision to quit a teaching job to goback to college to become a civil engineer was not made with the purpose of reducing herchild support obligation but to better support them once she graduates. In Re Marriage ofHart, 547 N.W.2d 612 (Iowa App. 1996). See also In re Marriage of Weiss, 496 N.W.2d785 (Iowa App. 1992) and In re Marriage of Blum, 526 N.W.2d 164 (Iowa App. 1994).

-44-

(9) Still, in cases where the parties' incomes are limited or the Court suspects that a party hasreduced income to manipulate the child support amount, the courts have generally used theearning capacity of the parents to calculate the guideline child support, rather than theiractual incomes. In In re Marriage of Raue, 552 N.W.2d 904 (Iowa App. 1996). The sameapproach was followed in State ex.rel DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994). (TheSupreme Court found that the mother had voluntarily reduced her income and attributed toher a net monthly income based on the monthly income she received on her last job.) Seealso State ex. rel. Schaaf v. Jones, 515 N.W.2d 568, Iowa App. 1994; In re Marriage ofBlume, 473 N.W.2d 629 (Iowa App. 1991); State Ex Rel. Lara v. Lara, 495 N.W.2d 719(Iowa 1993) (Court imputed to custodial parent the average amount she earned from herpart-time job which she had voluntarily quit); and In re Marriage of Fogle, 497 N.W.2d487 (Iowa App. 1993) (set child support based on estimated earning capacity of theminimum wage of $4.65 per hour for 40 hours per week, though the payor had beenunemployed since 1989).

4. Calculation of Guideline Net Income

a. Income Tax.

If the Court calculates the payor-spouse's income with the children considered as hisdependents, the Court should formally award the dependency exemptions to the payor inthe Decree. In re Marriage of Miller, 475 N.W.2d 675 (Iowa App. 1991). In addition, thenet income for child support purposes should be calculated deducting income taxescalculated to reflect the changes in filing status to single persons after the decree. In reMarriage of Huisman, 532 N.W.2d 157 (Iowa App. 1995).

b. Support of Parent's Other Dependents

The Child Support Guidelines include deductions for "prior obligation for child supportactually paid" and "qualified additional dependents". If the a prior obligation does notexist and a payor can show a legal obligation to support other children, the monthlyqualified additional dependent deduction from income will be permitted in amounts rangingfrom $90 for one child to $255 for five children.

(1) AFirst Mortgage Approach@ is applied to permit the Aprior support obligation@deduction for the child support calculation only when the date of the original courtor administrative order, for another child is prior to the original support order forthe child before the court. Iowa Administrative Code Rule 441-99.2(4) and priorcases dealing with multiple family obligations permit only the qualified additionaldependent deduction in other calculations. State ex. rel. Spencer v. White, 584N.W.2d 572 (Iowa App. 1998).

(2) Payments on delinquent support obligations have never been allowed as "priorobligation of child support...actually paid" and are not deductible from grossincome to determine net income for the Guidelines. State Ex Rel. DHS v. Burt,469 N.W.2d 669 (Iowa 1991). It makes no difference whether the payments are foran obligation from a prior case or whether the children are emancipated. State ExRel. Davis by Eddins v. Bemer, 497 N.W.2d 881 (Iowa 1993).

-45-

c. Payments on Delinquent Income Tax

Though the Guidelines permit deduction for federal income taxes to arrive at net incomeavailable for child support, the Guidelines specifically do not allow deduction for paymentof debts. Just as payments on delinquent child support are not deductible, payments ondelinquent income taxes cannot be deducted. Nielson v. Nielson, 521 N.W.2d 735 (Iowa1994). See also McIntire v. Leonard, 518 N.W.2d 793 (Iowa 1994).

d. Alimony Consideration

(1) The deduction of alimony in the current case from a child support payor=s grossincome constitutes a variance from the guidelines. Deductions for prior obligationsof child support and spousal support actually paid pursuant to court or administra-tive order are permitted, but the Guidelines do not provide a deduction for spousalsupport paid under the present decree. Iowa Ct. R. 9.5

(2) Though a variance permitting the deduction of alimony in the current case requiresa finding by the Court that the amount of child support which would result fromapplication of the guidelines would be unjust or inappropriate under criteria listedin the guidelines. Iowa Ct. R. 9.9, most courts in calculating child support whensubstantial alimony is ordered in the current case, have granted the variance,approved the deduction of alimony from the payor’s income, and included thepayment in the payee’s income. In re Marriage of Lalone, 469 N .W.2d 695, 697(Iowa Ct.App.1991); In re Marriage of Russell, 511 N .W.2d 890, 892 (IowaCt.App.1993).

(3) In re Marriage of Richter, No. 2-783/12-0392 (Iowa App. 2012). Jeffreycontended the district court erred in not considering the $2,200 per month spousalsupport award when calculating his income to determine his child supportobligation. The Court may consider the spousal support award when decidingwhether to deviate from the guidelines, the court is not required to do so absent afinding the spousal support would render the child support award unjust orinappropriate under the criteria listed in Child Support Guideline Rule 9.11. See Inre Marriage of Lalone, 469 N.W.2d 695, 657 (Iowa 1991). However, Jeff neverproposed nor argued that the court should subtract any alimony he would beordered to pay in determining his child support obligation though he agreed Lisawas entitled to alimony. Moreover, did not present any evidence to support adeviation from the child support guidelines. In addition, the Court found that Jeffhad sufficient income to pay both the child support and alimony obligations; andthat subtracting Jeff's alimony obligation from his income to set his child supportwould result in an inadequate child support amount.

(4) In re Marriage of Sawvel, No. 2-809 /12-0448 (Iowa App., 2012). When settingchild support, the district court may adjust the payments to reflect present alimonypayments as it feels necessary to provide for the needs of the children and dojustice between the parties, depending on the circumstances of the case. See In reMarriage of Lalone, 469 N.W.2d 695, 697 (Iowa 1991); see also In re Marriage ofRussell, 511 N.W.2d 890, 891-92 (Iowa Ct. App. 1993); In re Marriage of Allen,493 N.W.2d 273, 275 (Iowa Ct. App. 1992) In the case of long-term alimony, itis proper to deduct spousal support payments from the payor's income and add itto the payee's to determine child support. In re Marriage of Benson, 495 N.W.2d777, 781-82 (Iowa Ct. App. 1992). Here, Susan received "rehabilitative alimony,

-46-

$1,000 per month for ten years and child support in the amount of $1,755.00 permonth. The Court refused to deduct Eric’s $1,000 alimony to determine his netmonthly income because the alimony would be deductible for tax purposes, and hisactual cost after tax cost would be $580.00 per month. In addition, the Court foundthat Eric could afford to pay spousal support and child support as ordered. Boththe trial court and the Court of Appeals ignored the fact that calculation of the childsupport under the guidelines with the subtraction of alimony from Eric’s incomeand adding it to Susan’s would take the tax savings to Eric and the additional taxburden to Susan into consideration and produce a child support amount based ona close approximation of the parties’ actual net incomes.

(5) In re Marriage of Bilden, No. 2-346/11-1856 (Iowa App. 2012). Dawn had earned$23,500 per year, but she decided to return to school to become a nurse. Although Dawnhad good reasons for going back to school to become a nurse, that decision nonetheless hada corresponding consequence of voluntarily reducing her income. When a parentvoluntarily reduces his or her income or decides not to work, it may be appropriate for thecourt to consider earning capacity rather than actual earnings when applying the childsupport guidelines. In re Marriage of Nelson, 57,0 N.W.2d 103 (Iowa 1997). Therefore,the Court decided that the Iowa Child Support Guidelines required that an earning capacitybe imputed to her in calculating the child support payments to her, even though the Courtalso approved rehabilitative alimony in the amount of $250 per month for forty-eightmonths. At first glance it may seem unusual to impute income to Dawn for purposes ofchild support calculations, which reduces Casey's child support obligation payable to her,but then require him to pay her spousal support, effectively mitigating the child supportresult. On closer examination, however, the child support calculation follows the law; andthe modest rehabilitative spousal support is appropriate in order to assist Dawn to becomeeducated and trained for a career that has a greater likelihood of helping her be self-sufficient and better able to assist in the support of the children.

e. Parents’ Income Over $20,000.00 Per Month

With the adoption of child support guidelines, a court is no longer required to consider the statutoryfactors of Iowa Code Sections 598.21(4) and 598.21(8). A court, however, may consider thestatutory factors when the guidelines require judicial discretion or if the guideline=s award wouldbe unjustified or inappropriate. Judicial discretion is required under the latest child supportguidelines when the parents’ combined net guideline income is over $20,000.00 per month. Thesupport payment cannot ordinarily be less than the amount specified in the Guidelines for a$20,000.00 per month income. However, the amount awarded in child support above the guidelineamount rests within the sound discretion of the court. In re Marriage of Maher, 596 N.W.2d 561(Iowa 1999) [father was required to continue paying $4,500.00 per month in child support for histhree children out of his $10,161.00 per month net income because their mother could not maintaintheir $9,875.00 per month budget without this assistance].

(1) The Guidelines also give the Court discretion to lower support below the amount requiredat $20,000.00 on the guidelines chart. However, In re Marriage of Beecher, 582 N.W.2d510 (Iowa 1998), shows that the power will be rarely used. Child support was not bereduced for any of the following reasons: (1) the father paid the children=s medical expenses[he was allowed a deduction for these expenses in the guideline support calculation], (2) thehigh cost of the father=s new home in California, (3) the cost of the children=s transportationfor visitation, (4) the father=s voluntary support for the older children=s college expenses,or (5) the remarriage of the custodial parent.

-47-

(2) Few other cases have explored the amount of support above the Guidelines amountwhich will be ordered when the parents’ incomes are above the amount coveredby the Guidelines. However, cases dealing with Payor's incomes in excess of theold $3,000 and $6,000 per month guideline limits should provide guidance indealing with parents whose combined incomes are over $20,000 per month. Clearly, the support can be generous. "Although Iowa Code '598.21(4)(a)provides that the child support amount should be reasonable and necessary, thesupport award is not limited to the actual current needs of the child but may reflectthe standard of living the child would have enjoyed had there not been a dissolu-tion. In re Marriage of Campbell, 451 N.W.2d 192, 194 (Iowa App. 1989). Areasonable award would include consideration of the factors set out in In reMarriage of Zollner, 219 N.W.2d 517, 528 (Iowa 1974)." In re Marriage ofPowell, 474 N.W.2d 531 (Iowa 1991). See also Mason v. Hall, 482 N.W.2d 13(Iowa App. 1992) [income over $800,000 per year, support of $52,000 with$39,000 to trust]; Nielson v. Nielson, 521 N.W.2d 735 (Iowa 1994).

(3) However, two cases decided when the payor’s guidelines ceiling was $3,000.00 permonth, indicate that the percentage of the payor's income above the level coveredby the Guidelines which will be required for child support will be much less thanthe percentage required from the income up to $20,000.00 per month. In In reMarriage of Steele, 502 N.W.2d 18 (Iowa App. 1993) [support was $1,000.00 permonth--14.6% of the father's net income, and 6.4% of the father's income over$3,000.00 per month was tapped]; and In re Marriage of Van Ryswk, 492 N.W.2d728 (Iowa App. 1992), [support was $1,500.00 per month, only about 15% of thepayor’s $10,000.00 per month net income for three children].

(4) In re Marriage of Snow, No. 2-596 /11-1030 (Iowa App., 2012). Keith and Kellywere granted joint physical care of their child. Kelly’s teacher income was$59,000. Keith’s income was between $500,000 and $600,000. Their monthly net income total was well above the top of the Child Support Guidelines’ $20,000 permonth chart. The district court ordered Keith to pay $1,265 per month childsupport under the offset method. Kelly was ordered to pay for daycare and after-school care; and Keith was ordered to pay ninety percent of the extracurricularactivity and school expenses. On appeal, Kelly sought$2,500 monthly child supportfrom Keith. Iowa Court Rule 9.26, requires that when combined net monthlyincome exceeds $20,000, "the amount of the basic support obligation is deemed tobe within the sound discretion of the court." The minimum child support amountfor parents of one child and net incomes totaling $20,000 per month is approxi-mately $1,200.00 per month. The Court of Appeals ruled that “equity requires usto modify the decree and increase Keith's child support obligation to $1,500 permonth.”

f. Split/Divided Physical Care

The Guidelines [Rule 9.15] provide that when a split or divided physical care arrangementis entered into (at least one child in the primary care of each parent), the trial court mustcalculate the amount of child support from each parent while assuming the other parent isthe non-custodial parent. The parent obligated to pay the larger amount is required to paythat amount, less a setoff for the amount owed by the other parent. See also In re Marriageof Will, 489 N.W.2d 394 (Iowa 1992). In re Marriage of Hansen, 465 N.W.2d 906, 911(Iowa App. 1990); and Section 598.21(4)(d).

-48-

g. Joint Physical Care

The Guidelines [Rule 9.14] provide that when a joint (equally divided) physical carearrangement is ordered, the court must calculate the amount of child support from eachparent while assuming the other parent is the non-custodial parent. The parent obligatedto pay the larger amount is required to pay that amount, less a setoff for the amount owedby the other parent. See also In re Marriage of Swanson, 586 N.W.2d 527 (Iowa App.1998).

In re Seay, 746 N.W.2d 833 (Iowa 2008). The parties and the trial court called theparenting plan “joint physical care.” However, the parenting schedule provided that thechildren would reside with the Mr. Seay for 158 overnights, while the would be with Ms.Thomas for 206 nights. The district court reduced Seay's child support obligation by 25percent as a result of extraordinary visitation, but Seay claimed the court should havefollowed the Guidelines joint physical care “offset” calculation. The Supreme Court heldthat joint physical care does not require virtually equal division of the children’s timebetween the parental homes. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). Therefore, offset method should be used whenever the parties or the court define theparenting plan as “joint physical care”. However, where as here, the division of time issignificantly unequal the court can make written findings that application of the guidelineswould be unjust and grant a departure from an award of child support calculated pursuantto the offset method.

5. Special Circumstances for Adjustment of Guideline Support

Before considering an upward or a downward adjustment of child support, the Court must firstcalculate the Guideline support amount. State ex. rel Reaves v. Kappmeyer, 514 N.W.2d 101 (Iowa1994). The Guidelines create a rebuttable presumption that the Guideline amount is correct. However, " ... the Guideline amount may be adjusted upward or downward if the Court finds anadjustment necessary to provide for the needs of the child and to do justice between the parties inthe special circumstances of the case." State ex. rel. DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994).

a. Statutory Factors

With the adoption of Guidelines, the Court is no longer required to consider the statutoryfactors of Iowa Code Section 598.21(4) except where the Guidelines require judicialdiscretion or if the Guidelines would be unfair and inappropriate. In re Marriage of Powell,474 N.W.2d 531 (Iowa 1991). See also In re Marriage of Linberg, 462 N.W.2d 698 (IowaApp. 1990).

b. Parent's Living Expenses

In establishing Guidelines, the Supreme Court balanced the needs of children against thelegitimate needs and expenses of the payor parent. In In re Marriage of Nelson, 570N.W.2d 103 (Iowa 1997). AWith very rare exceptions, involving persons of affluence, childsupport payments are more than the obligor can readily afford -- and much less thanreasonably needed for the child or children involved. The Guidelines were drafted with fullappreciation of this dismal reality and specify the priorities to be considered in fixingsupport orders ... Retirement of indebtedness is expressly made a lower priority of the needsof the children.@ See also In re Marriage of Reedholm, 497 N.W.2d 477 (Iowa App.1993) and State Ex Rel. DHS v. Burt, 469 N.W.2d 669 (Iowa 1991).

-49-

c. Children's Extra Expenses

The Guidelines are intended to include expenses for clothes, school supplies, and recreationactivities. Therefore, an order requiring contribution to these expenses in addition to payment ofguidelines cash support was improper without a finding that the guidelines amount would be unjustor inappropriate. In re Marriage of Gordon, 540 N.W.2d 289 (Iowa App. 1995). See also, In reMarriage of Fite, 485 N.W.2d 662 (Iowa 1992) (private school tuition did not provide a basis forincreasing the child support above the Guidelines amount).

In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013). The parties stipulated on jointphysical care of their six children. Therefore, both parents have an equal responsibility to maintainhomes and provide routine care, with neither party having superior rights or responsibilities withrespect to the children. See Iowa Code §598.1(4). The court ordered child support using the offsetmethod required by the Child Support Guidelines in joint physical care cases and ordered that allextracurricular activity fees be paid equally by the parents. The Child Support Guidelines aredesigned to calculate an amount of funds that will "cover the normal and reasonable costs ofsupporting a child." In re Marriage of Okland, 699 N.W.2d 260, 268 (Iowa 2005); see also Iowa Ct.R. 9.3 The extracurricular activity expenses, school-related fees, and dues for athletic activitiesaddressed by the district court fall squarely within the realm of child-rearing expenses contemplatedby our guidelines. When a court awards primary physical care and normal guidelines support, theguidelines support is calculated to include the noncustodial parent’s share of the children’s normalexpenses, including extracurricular activity costs. However, here, the court awarded joint physicalcare of the children; and the offset method requires both parties to pay support in a manner whichequalizes their abilities to pay the children’s direct expenses. Therefore, the Court must require eachparty to pay one-half the extracurricular expenses to make sure both spouses pay their fair share.

d. Parent's Other Dependents

(1) The Child Support Guidelines [Rule 9.7] provides a deduction for "qualified additionaldependents". If a party can show a legal obligation to support other children, a monthlydeduction from income for the qualified additional dependents will be permitted in amountsranging from $135 for one child to $383 for five or more children.

(2) However, in Gilley v. McCarthy, 469 N.W.2d 666 (Iowa 1991), the Court recognized thatthere are cases where inflexible application of the Guidelines will produce unreasonable orabsurd results. See also State Ex. Rel. Miles v. Minar, 540 N.W.2d 462 (Iowa App. 1995). The Guidelines create only a rebuttable presumption of fairness and the Court can vary theamount when necessary to do justice between the parties or to provide for the needs of thechild. See also In re Marriage of Fite, 485 N.W.2d 662 (Iowa 1992), and In re Marriage ofGulsvig, 498 N.W.2d 725 (Iowa 1993).

(3) In most cases, appellate courts have not found sufficient justification in the specialcircumstances raised to make an adjustment from the Guideline amount. In State ex. rel.DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994), the father provided no evidence of anyspecial circumstances to justify an adjustment. In State ex. rel Schaaf v. Jones, 515 N.W.2d568 (Iowa App. 1994), the Court found that the parties were in equally difficult financialcircumstances; so no deviation from the Guidelines was ordered. In In re Nielson v.Nielson, 521 N.W.2d 735 (Iowa 1994), the Court found that the $50,000 income of thefather was sufficient to permit him to pay the Guideline amount without creating hardshipfor the children in his home. See also State ex rel. Cacek v. Cacek, 484 N.W.2d 592 (Iowa1992).

-50-

e. Special Needs of Child Above Guidelines

An extra payment in addition to the Guideline child support amount is appropriate to provide fora retarded child's special needs. In re Marriage of Ludwig, 478 N.W.2d 416 (Iowa App. 1991).

f. Child's Own Income

The Child Support Guidelines make no provision for the reduction of the non- custodial parent'ssupport obligation because of the child's receipt of personal income. Therefore, the adoptive father,income $80,000.00 was required to pay the full Guideline amount though the children were entitledto $1,095.00 per month Social Security benefits because of the death of their natural father. In reMarriage of Foley, 501 N.W.2d 497 (Iowa 1993).

g. Agreement of the Parties

In In re Marriage of Handeland, 564 N.W.2d 445 (Iowa App. 1997), the wife attempted to obtainalimony after she had entered into a stipulation which waived her right to alimony after an eighteen-year marriage in return for child support of one-half of the Guidelines amount. The mother=s waiverof alimony constituted just cause for deviating from the Guidelines and did not adversely affect thebest interests of the children.

h. Reduction for Social Security Payments

In In re Marriage of O=Brien, 565 N.W.2d 619 (Iowa 1997), social security disability benefitsreceived because a non-custodial parent=s spouse is disabled are received only because of themother=s relationship to the stepfather and are intended as replacement for the stepfather=s incomelost because of disability. Therefore, the benefits should be applied to the mother=s supportobligation.

i. No Reduction for Repudiation by Children

In re Marriage of Hoksbergen, 587 N.W.2d 490 (Iowa App. 1998). AWe have held a child=srepudiation of a non-custodial parent may relieve that parent from paying college support. In reMarriage of Baker, 485 N.W.2d 860, 862-63 (Iowa App. 1992). College support is not childsupport. ... The withholding of visitation does not stop an obligation for child support. ... Otheractions such as contempt or modification of visitation or physical care are available to Allen toenforce these rights should Marlys not begin to recognize her responsibilities as joint custodian.@

6. Other Child Support Issues

a. Normally No Suspension During Visits

(1) Ordinarily, child support should be ordered for a twelve-month year. The custodialparent's expenses for childcare are only slightly reduced during the child's absence. The Court of Appeals reversed the Trial Court's order that support be suspendedduring the yearly two-month visit with the father. In re Marriage of Oakes, 462N.W.2d 730 (Iowa App. 1990). See also State Ex Rel. Lara v. Lara, 495 N.W.2d719 (Iowa 1993); and In re Marriage of Mrkvicka, 496 N.W.2d 259 (Iowa App.1992).

(2) However, in two cases in which custody of the children was granted to the morefinancially secure father, the mother's child support obligation was altered during

-51-

periods of extended summer visitation. See In re Marriage of Toedter, 473 N.W.2d233 (Iowa App. 1991) and In re Marriage of McElroy, 475 N.W.2d 221 (Iowa App.1991).

b. Stepparent -- No Obligation

An Iowa court cannot ordinarily order support for a stepchild after a dissolution ofmarriage, nor may one who accepts responsibility for a child as in loco parentis be requiredto furnish support for the child after a divorce. In re Marriage of Carney, 206 N.W.2d 107(Iowa 1973). However, in In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995), theIowa Supreme Court adopted the Equitable Parent Doctrine which permits a stepfather togain full parental rights and responsibilities if he has assumed the role of a parent in goodfaith and the relationship is in the best interest of the child."

c. Payment Through Clerk of Court

Iowa Code '598.22 provides that "payments made to persons other than the Clerk of theDistrict Court and the Collection Services Center do not satisfy the support obligationscreated by the orders or judgments..." The only exception to the above rule is provided by'598.22A, which permits a credit to be entered if payment is confirmed by an affidavit ofthe payee, approved by the Court. Hurd v. Iowa Dept. of Human Services, 580 N.W.2d383 (Iowa 1998). See also In re Marriage Caswell, 480 N.W.2d 38 (Iowa 1992).

In re Marriage of Renes, No. 3-070/12-1136 (Iowa App., 2013). Charles failed to paysupport through the Friend of the Court. Then 30 years after the decree was entered and 10years after the support obligation ended, Jeri sought to collect the support judgment. Thequestion on appeal was whether laches and promissory estoppel prevent Jeri fromrecovering sums she claims were past-due. The elements of promissory estoppel "are: (1)a clear and definite oral agreement, (2) proof that plaintiff acted to his detriment in reliancethereon, and (3) a finding that the equities entitle plaintiff to [the] relief." In re Marriage ofHarvey, 523 N.W.2d 755, 756-57 (Iowa 1994). Though equitable estoppel should onlybe applied in cases of this kind on rare occasions, the Court found that Charles and Jeri hadagreed that he would directly support the family rather than make the court-ordered supportpayments. Credible evidence strongly supported Charles' position: Jeri, despite decades ofopportunity, failed until recently, to claim contempt or bring an action to enforce the decree. In addition, though Jeri had little earnings throughout most of the period, she never appliedfor or received public assistance.

d. Income Withholding Orders

(1) Chapter 252D controls the use of Income Withholding Orders in all proceedingswhich require child support payments and mandates use of a uniform IncomeWithholding Order form which can be sent to any employer or income source inor outside Iowa.

(2) In In re Marriage of Winnike, 573 N.W.2d 608 (Iowa App. 1997), the Court heldthat the statute [Iowa Code Section 252D.8(1)] provides an ex parte order mayissue assigning income from benefits or other income to pay child support. Evena disability benefit can be tapped.

(3) In In re Marriage of Ballstaedt, 606 N.W.2d 345 (Iowa 2000), the Court held thatbefore contract payments are subject to an Order of Mandatory Income Withhold-

-52-

ing the Court must determine how much of the payment is due to the payorpersonally and how much was due to his corporation; and if payments are due tothe corporation, the Court must consider whether conditions justify Apiercing thecorporate veil@.

e. Cost-of-Living Increases

The child support guidelines preempt COLA provisions in dissolution decrees because thechild support guidelines are subject to periodic review at least once every four years andsuch reviews will presumably take into consideration cost-of- living increases. In reMarriage of Maher, 596 N.W.2d 561 (Iowa 1999). See also In re Marriage of Ludwig, 478N.W.2d 416 (Iowa App. 1991). Nevertheless the 1997 Legislature amended Chapter 252Hto permit cost-of-living alteration of support orders in cases supervised by the ChildSupport Recovery Unit with the mutual consent of both the payor and payee.

f. Joint Account for Joint Physical Care Support

In re Marriage of Munger, 2007 WL 1063048 (Iowa App.) The Court of Appeals approveda trial court’s requirement that the parties established a shared special expense fund,whereby each parent would equally contribute to a joint checking account to pay for thechildren's expenses. The parties’ attitudes and belief systems about money and its usesvaried widely; and the Court anticipated that disputes might arise over economic expenseneeds of the children. The structure of a shared fund will have the benefit of a clear andunambiguous accounting for the uses of money for expenses for the children.

7. Termination of Support Obligation

a. Section 598.1(6) provides that the obligation to pay child support A... shall include supportfor a child who is between the ages of 18 and 19 years who is engaged full-time incompleting high school graduation or equivalency requirements in a manner which isreasonably expected to result in completion of the requirements prior to the person reaching19 years of age ...@

b. The Court does not have the power to require child support to be continued for an 18-year-old who is not disabled and not attending school simply because he remains in the parentalhome without income. In re Marriage of Ludwig, 478 N.W.2d 416 (Iowa App. 1991). SeeIn re Marriage of Holcomb, 457 N.W.2d 619 (Iowa App. 1990) and In re Marriage ofKeller, 478 N.W.2d 424 (Iowa App. 1991) [child eighteen but still in junior year of highschool].

8. Post-Secondary Education Subsidy

a. Discriminates for Children of Divorce

(1) The Code Section 598.1(8) provides for post-secondary education subsidy forchildren of divorced parents. Although the statute discriminates in favor ofchildren of divorced parents, the discrimination is a permissible one and is notviolative of equal protection. In re Marriage of Vrban, 293 N.W.2d 198 (Iowa1980).

(2) In Johnson v. Louis, 654 N.W.2d 886 (Iowa 2002), the Supreme Court found thatillegitimate persons are not entitled to support after age 18 or the education

-53-

subsidy, and that this is not a violation of the Equal Protection Clause. Neithercommon law or the statutory law (Chapters 252A and 600B) require support to anondisabled child beyond the age of 18; and the provisions of Chapter 598 whichpermit the court to order a postsecondary education subsidy apply only to actionsfor annulment, dissolution or separate maintenance. The Court stated that ‘illegiti-mates= are treated the same as children whose parents continue to be married toeach other; that the educational benefit is a quid pro quo for the loss of stabilityresulting from divorce; and that children whose parents never sought Stateinvolvement to formalize or dissolve their relationships, cannot claim the loss ofstability such change in status brings.

b. Parental Contribution and Court Supervision Not Mandatory

Since the Legislature used the word "may" rather than "shall" in Section 598.1(8), theLegislature contemplated circumstances where awarding college support would beimproper. In re Marriage of Pendergast, 565 N.W.2d 354 (Iowa App. 1997) approved thedenial of education assistance to an adult child who, at age 12, wrote a letter Adisowning@her father and continued the behavior with the apparent encouragement of her mother forseveral years. See also In re Marriage of Baker, 485 N.W.2d 860 (Iowa App. 1992). However lack of contact between the parent and child should not be considered as a factorin denying support for higher education where the lack of contact was due to circumstancesof the parents' own making. State ex. rel. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App.1994).

c. Less Parental Sacrifice Required

In re Marriage of Longman, 619 N.W.2d 369 (Iowa 2000), the Supreme Court ruled thatthe mother did not have a sufficient, positive cash flow after her reasonable monthlyexpenses to make any contribution towards the children=s college expenses. AWe do notbelieve that a parent is required to make the same amount of parental sacrifice towardassisting in the college education of a child that is required to provide subsistent support forminor children.@ In addition, the court warned that because Section 598.21F(3) providesfor payment only to the child or to the educational provider, a parent cannot advanceeducation expenses and then demand reimbursement from the other. See also In reMarriage of Vaughan 812 NW2d 688 (Iowa 2012).

d. Requirements of Statute

(1) Definition of Post-Secondary Education Subsidy. The Subsection 598.1(8) definesthe subsidy as follows: ". . .an amount which either of the parties may be requiredto pay under a temporary order or final judgment or decree for educationalexpenses of a child who is between the ages of eighteen and twenty-two years if thechild is regularly attending a course of vocational-technical training either as a partof a regular school program or under special arrangements adapted to the individualperson's needs; or is, in good faith, a full-time student in a college, university, orcommunity college; or has been accepted for admission to a college, university,or community college and the next regular term has not yet begun.” Note thatthe obligation can fill the gap between the end of high school and the beginning ofthe freshman year and the months between regular school terms.

-54-

(2) Procedures and Criteria. Subsection 598.21F specifies procedures and criteria fordetermining whether good cause exists for ordering a Apost-secondary education subsidy. In re Marriage of Neff, 675 N.W.2d 573, 579 (Iowa 2004).

(a) The Statute requires the court to determine the cost of postsecondary educationbased upon the cost of attending an in-state public institution and permits onlyreasonable costs for necessary post-secondary education expenses.

(b) The court is then required to determine the amount, if any, which the child mayreasonably expected to contribute, considering the child=s financial resources,including but not limited to the availability of financial aid and the ability of thechild to earn income while attending school.

(c) The court is then required to deduct the child=s expected contribution from the costof post-secondary education and to apportion responsibility for the remaining costto each parent. However, the amount paid by each parent shall not exceed 33 1/3%of the total cost of post-secondary education.

(d) The post-secondary education subsidy shall be payable to the child, to theeducational institution, or to both, but shall not be payable to the custodial parent.

(e) A post-secondary education subsidy shall not be awarded if the child hasrepudiated the parent by publicly disowning the parent, refusing to acknowledgethe parent, or by acting in a similar manner.

(f) The statute further requires that the child shall forward to each parent reports ofgrades awarded at the completion of each academic session within ten days ofreceipt of the reports and the subsidy may be terminated upon the child=scompletion of the first calendar year of a course of instruction if the child fails toAmaintain a cumulative grade point average in the median range or above duringthat first calendar year.@

(3) Good Cause. In re Marriage of Moore, 702 N.W.2d 517 (Iowa App. 2005) There is noobligation at common law to support an adult child who is not under a disability. Inaddition, under § 598.21(F) the Court must also determine if good cause exists to award apostsecondary education subsidy. The Court must assess the ability of the child to completepostsecondary education and actual financial needs. This threshold issue must be resolvedbefore the court goes to the next step of calculating and ordering the parties' contributions.

(4) Assumption of Greater Obligation. The precise limitations of Section 598.21(F) arepresent in all orders for post-high school support whether or not specified by the Court. Inre Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980). However, a parent can voluntarilyassume post-high school obligations in excess of the statute. See, e.g., Chambers v.Chambers, 231 N.W.2d 23 (Iowa 1975); In re Marriage of Halbach, 506 N.W.2d 808 (IowaApp. 1993).

(5) Retroactive Application. Section 598.21F(6), which provides: “A support order, decree,or judgment entered or pending before July 1, 1997, that provides for support of a child orchildren for college, university, or community college expenses, may be modified inaccordance with this subsection.” In re Marriage of Pals, 714 N.W.2d 644 (Iowa 2006). Thepost-secondary-education-subsidy statute applies whether or not the original decreeprovided for college-aged support.

-55-

(6) Obligation Ends at Age 23. In re Marriage of Neff, 675 N.W.2d 573 (Iowa 2004), TheCourt reexamined the statutory language specifying the age at which the postsecondaryeducation subsidy should end. Section 598.1(8) states that the applicable time frame is"between the ages of eighteen and twenty-two." Given the traditional ages at which studentsattend college, the ages which define this time frame should be read inclusively, i.e.students qualify so long as they are older than seventeen but less than twenty-three, to effectlegislative intent.

In re Marriage of Gibson , No. 2-872 /12-0494 (Iowa App. 2012). The 1981 dissolutiondecree provided that “If the child attends any college [or] university . . . [Stuart] shall beliable for and shall contribute one-third of the child's costs for room, board, tuition, books,and school supplies for the period so attended up to a maximum of 48 months.” In 2012,Stuart was held in contempt by the district court for failing to pay one-third of his twenty-eight-year-old daughter's college expenses. The trial court found that original court hadadopted the parties' agreement to apportion Somer's expenses without regard to her age;and that though the agreement differed from the statutory definition of support, Stuart wasbound by his agreement adopted into the Decree. However, the Court of Appeals noted thatthe decree refers not to an agreement but to a September hearing involving arguments bythe parties’ attorneys; that original decree was not signed by the parties and their attorneys;and that the decree was not entered until three months after the September arguments ofcounsel. Therefore, Court decided that the decree did not adopt the parties' stipulation andsettlement. More important, the court pointed out that "Iowa courts may only order childsupport for a child in college until the child is twenty-two years old." Vrban v. Levin, 392N.W.2d 850, 853 (Iowa Ct. App. 1986) (citing Chambers v. Chambers, 231 N.W.2d 23, 25(Iowa 1975); In re Marriage of Briggs, 225 N.W.2d 911, 914 (Iowa 1975)). The courtconcluded that a parent can not be required to pay support for the child's college educationpast the statutory age limit "regardless of the support provision in the dissolution decree."

e. Full-Time Student

A "full-time student" for purposes of the statute is not necessarily the same as the college'sdefinition of "full time". In re Marriage of Huss, 438 N.W.2d 860 (Iowa App. 1989).

f. Good Faith

The requirement of Section 598.1(8) of "good faith" "...places a duty on the student to show that heor she actually is intent on preparing to start his or her education on a full-time basis at the nextavailable term...Generally, the period of waiting for admission should not exceed three monthsunless the student shows extraordinary circumstances that justify a longer period." In re Marriageof Voyer, 491 N.W.2d 189 (Iowa App. 1992).

g. Child’s Assets/Resources.

In re Marriage of Kupferschmidt, 705 N.W.2d 327 (Iowa App. 2005). Accounts for childrenestablished by the parents at the time of the divorce for the purpose of providing for their children’seducations, Series EE U.S. savings bonds and accounts under the Uniform Transfers to Minors Actmust be considered as a resource available to the children, prior to determining the parents'education subsidy even if the children do not want to use these assets. See In re Marriage ofRosenfeld, 668 N.W.2d 840, 848 (Iowa 2003). To do otherwise would discourage parents fromsaving for the postsecondary education of their children.

-56-

In re Marriage of Geisinger,No. 2-902 /12-0280 (Iowa App., 2012). The only factor in disputehere was the effect of a private student loan co-signed by the mother, Dawn, and the parties’daughter, Deborah. Dawn argued that the trial court improperly classified the private student loanas a financial resource of the child, which reduced the amount of the needed parental contributions. In In re Marriage of Neff, 675 N.W.2d 573, 577 (Iowa 2004), the supreme court ruled that studentloans which the parent is the primary obligor are considered as parental contributions. Here, unlikethe loan considered in Neff, the student, not Dawn, is the individual primarily obligated on herdaughter's loan. Dawn only becomes obligated to pay after a default. Therefore, the loan is notcounted as a financial contribution by Dawn to the child’s postsecondary education.

h. Necessary Expenses

(1) The expenses to which a parent can be expected to contribute are limited to those which are"necessarily incident" to a post-high school education. In re Marriage of Hull, 491 N.W.2d177 (Iowa App. 1992). See also, In re Marriage of Hess, 522 N.W.2d 861 (Iowa App.1994).

(2) "Standing alone, providing a home base for school vacations does not rise to the level ofcontribution to a child's college educational expenses. However, when a child lives at homeduring the school year, saving the expense of room and board normally paid to the school,the term "home base" becomes economically significant." In re Marriage of Wood, 567N.W.2d 680 (Iowa App. 1997).

(3) In re Marriage of Dolter, 644 N.W.2d 370 (Iowa App. 2002) The Court of Appeals heldthat A...the term >necessary postsecondary education expenses= means tuition, room, board,and books, including mandatory fee assessments for such things as laboratory, studenthealth, and computer use. The definition and limitation as set out above does not precludethe parties from entering into a stipulation covering additional expenses.@

(4) In re Marriage of Goodman, 690 N.W.2d 279 (Iowa 2004). Because the parties had agreedto share their oldest’s daughter’s sorority expense, the younger child’s sorority dues wereruled to be a necessary college expense. In addition, a cash allowance is necessary for acollege student to participate in the social, cultural, and educational experiences outside theclassroom; and that the parties’ financial circumstances showed they had the means toprovide this assistance. The expenses were ordered to be paid one third by each parent andthe child. In addition, the Supreme Court held that if a child is entitled to a postsecondaryeducation subsidy, the subsidy payments may begin upon graduation from high school ifshe is accepted for admission to a college, university, or community college and the nextregular term has not begun.

(5) In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006).The statute’s contributionrequirement is based solely on the costs of a college education at an in-state publicinstitution. See Iowa Code §598.21F(2)(a). Therefore, the subsidy can fall short forstudents of divorced parents who desire to attend a private college or an out-of-stateinstitution. Since the court is not authorized to make a parent responsible to pay more thanone third of the cost of an in-state public institution, Deborah was not entitled to helpbecause she received loans and federal work-study money in excess of the total costs ofattending a public in-state college. Thus, her parents could not be made legally responsibleunder the statute to subsidize any additional costs of an out-of-state college education.

-57-

i. Repudiation

Estrangement between parent and child alone is not sufficient to justify release of a parent from theobligation to contribute to higher education expenses. See In re Marriage of Dolter, 644 N.W.2d370, 373 (Iowa Ct. App. 2002)[ the child did not encourage his mother to attend his high schoolgraduation ceremony but did not argue with her when she said she was going to attend] and Stateex rel. Tack v. Sandholdt, 519 N.W.2d 414, 418 (Iowa Ct.App. 1994)[lack of contact was due to theparent's' harassing conduct].

j. Five-Step Process

In In re Marriage of Vaughan 812 NW2d 688 (Iowa 2012), the Supreme Court set out the following process determining a parent’s obligation: (1) First, determine whether good cause exists for thepost-secondary education subsidy after considering the age of the child, the ability of the childrelative to postsecondary education, the child's financial resources, whether the child is self-sustaining, and the financial condition of each parent. § 598.21F(2); (2) After good cause isestablished, determine the cost of postsecondary education based upon "the cost of attending an in-state public institution.” (3) Determine the amount, if any, the child may reasonably be expected tocontribute, considering the child's financial resources, the availability of financial aid such asscholarships, grants, or student loans, and the ability of the child to earn income while attendingschool; (4) Then deduct the child's expected contribution from the cost of postsecondary educationto arrive at a figure for the "remaining cost" of the postsecondary education; and (5) When theremaining cost has been determined, the court must apportion the responsibility of the remainingcost to each parent. However, the statute caps the amount apportioned to each parent to no morethan thirty-three and one-third percent of the total cost of the child's postsecondary education at astate institution. See also In re Marriage of Daly, 2008 WL 4308278 (Iowa App).

k. Education Trust Funds

(1) Section 598.21F provides authority for a court to set aside some of a parent=s money in aseparate fund for the support of the children. Here, there was evidence that the father hada serious drug problem; however, no evidence was provided to establish that he wasunwilling or unable to pay for the children=s college expenses as they came due. Absentsuch evidence, there was no justification for requiring him to advance $75,000.00 forpayment of the girls= college expenses to be held by his former wife. In re Marriage ofWilliams, 595 N.W.2d 126 (Iowa 1999).

(2) In In re Marriage of Murphy, 592 N.W.2d 681 (Iowa 1999). The Supreme Courtcanceled an order that the parties contribute in equal shares to a trust fund for theirseven year old daughter to be used for her education beyond high school. IowaCode Section 598.21F(2) requires threshold determinations concerning the abilityof the child and the child=s actual financial needs. The court could not make thethreshold determinations eleven years before the education was to begin.

(3) Where a $45,000 trust for education was currently sufficient to meet the child'seducation expenses, the Court should not order additional monthly support to theparent with whom the child resided. In re Marriage of Hansen, 514 N.W.2d 109(Iowa App. 1994). See also In re Marriage of Steele, 502 N.W.2d 18 (Iowa App.1993); but see, State ex. rel. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App. 1994).

-58-

l. Court May Impose Obligation If Decree Silent

In re Marriage of Mullen-Funderburk, 696 N.W.2d 607 (Iowa 2005). When a dissolution decree is silent about college-age educational support, the issue is controlled bysections 598.1(8) and 598.21F of the Code. The procedure to be followed is an originaladjudication. It is not necessary to show a substantial change in circumstances. The districtcourt’s determination should be based upon the facts and law in existence when thedetermination is made. Also, the district court is to consider each parent’s obligation for thechild’s college education expenses.

m. Premature Setting of Obligation

The Trial Court has jurisdiction to continue support between ages eighteen and twenty-two. However, "...provision for the support to continue [beyond age eighteen] is prema-ture...[where] the children, ten and thirteen at trial, are too young for the trial court toproperly apply the four Vrban factors." In re Marriage of Mayfield, 477 N.W.2d 859 (IowaApp. 1991).

9. Life Insurance

a. The courts are not charting a consistent course on the issue of whether the payor should berequired to maintain life insurance payable to the children. In re Marriage of Mayfield, 477N.W.2d 859 (Iowa App. 1991), a dentist-father with a net income of $55,000.00 per yearwas required to maintain a life insurance policy payable to his children. However, in In reMarriage of Farrell, 481 N.W.2d 528 (Iowa App. 1991), the physician-father with a netincome of $87,000.00 per year was not required to provide life insurance for his childrenwith the justification that social security benefits would replace the father's obligation tosupport and educate his children.

b. In In re Marriage of Mouw, 561 N.W.2d 100 (Iowa App. 1997), the trial court required onemillion dollars of life insurance payable to the mother so long as any support obligationcontinued. The Court of Appeals reduced the amount of life insurance the father wasrequired to carry by $50,000.00 every twelve months: ALife insurance should be limited tothe amount necessary to secure an obligation.@ Mouw, at 102.

10. Court-Ordered Trusts

a. To Guarantee Support and Medical Expenses. Iowa Code Section 598.21(5) provides: "The Court may protect and promote the best interests of children of the parties by settingaside a portion of the property of the parties In a separate fund or conservatorship for thesupport, maintenance, education and general welfare of the minor children".

(1) Though support payments were current, they were sporadic. The father had a poorrecord of paying the children's medical expenses, and he almost completely refusedto help the children with their higher education costs. Therefore, the Court createda trust with his share of jointly owned real estate. In re Marriage of Antisdel, 478N.W.2d 864 (Iowa App. 1991).

(2) In Mason v. Hall, 482 N.W.2d 919 (Iowa 1992), the Court found that thereasonable cost for support of the child was $250 per week, but ordered theestablishment of a trust under the provisions of the paternity statute, Section

-59-

675.27, noting the father's poor payment history and the uncertainty of his incomeas a Major League baseball player.

(3) Though the father had been delinquent in child support payments, he had beengenerally prompt prior to the termination of his employment by injury. Now thatsupport payments had been set at a level consistent with his new income, the Courtruled that a trust was not needed over the lump-sum worker's compensationsettlement to insure payment. In re Marriage of Swan, 526 N.W.2d 320 (Iowa1995). But see Jahnke v. Jahnke, 526 N.W.2d 159 (Iowa 1994); In re Marriageof Foley, 501 N.W.2d 497 (Iowa 1993).

b. Children's Assets. The Court of Appeals approved a decree provision which required thefather and mother to hold all of the children's accounts "...In trust so that said accountcannot be transferred, liquidated or managed without the joint approval without bothPetitioner and Respondent while the respective child is a minor." In re Marriage ofFuscher, 477 N.W.2d 864 (Iowa App. 1991).

11. Disabled Adult Child

a. "598.1(9) defines the support obligation and includes support of 'a child of any age who isdependent on the parties to the dissolution proceeding because of physical or mentaldisability.'...The child support guidelines do not apply to cases involving a dependent adultchild...the obligation should be apportioned according to the ability of each parent tocontribute." In re Marriage of Davis, 462 N.W.2d 703, 704 (Iowa App. 1990). See also Inre Marriage of Bornstein, 359 N.W.2d 500 (Iowa App. 1984); and In re Marriage ofHansen, 514 N.W.2d 109 (Iowa App. 1994).

b. The support obligation for a disabled adult child is based on the child=s need for assistanceand her parents= ability to contribute to this need, and not all disabled adult children qualifyfor parental support. In re Marriage of Nelson, 654 N.W.2d 551 (Iowa 2002); In reMarriage of Clark, 577 N.W.2d 662 (Iowa App. 1998).

12. Medical Support

Chapter 252.E governs Medical Support, a category of child support.

a. Order for Medical Support. When an order for child support is entered pursuant to Chapter234, 252A, 252C, 598, or 675, the Court is required to order Medical Support, if a healthbenefit plan is available to either parent at a reasonable cost. In In re Marriage of See, 566N.W.2d 511 (Iowa 1997), Section 598.21(4)(a) requires Trial Courts to A ... order as childmedical support a health benefit plan ... if available to either parent at a reasonable cost.@

In re Marriage of Friedman, No. 3-274/12-1978 (Iowa App., 2013). Keith was a self-employed chiropractor, averaging approximately $70,000 in annual earnings. Jolene wasa Certified Nursing Assistant, but was attending night school to earn her nursing degree. Keith asserted it was "inherently unjust to require him to provide cash medical support forthe children, because he was unable to secure health insurance coverage due to the mental disabilities of the child C.W. He also argued Jolene was "unjustly enriched" by the cashmedical support payment because C.W.’s insurance was provided at no cost to Jolenethrough the Medicaid program. The Court found that the cash medical support was not'manifestly unjust', but rather is statutorily required. See Iowa Code § 252E.1A. The

-60-

children both received Medicaid through the State of Illinois; and the cash medical supportwould assigned to the State of Illinois, and would not unjustly enrich Jolene.

b. The Supreme Court incorporated provisions for medical support along with the ChildSupport Guidelines mandated by Section 598.21(4).

c. Procedures. Chapter 252E sets up an elaborate system for enrolling and maintainingmedical benefits for dependents which the obligor, obligee, or the Department of HumanServices can use when the order for medical support is entered and later, when circum-stances or benefits change. The employer and the insurer are required to cooperate in theestablishment and maintenance of medical benefit plans for dependents in much the sameway employers are required to cooperate and participate In the assignment of earnings forpayment of support obligations.

d. Where the father earned $105,000.00 and the mother $25,000.00 plus $12,000.00 inalimony, an 80%-20% split of medical expenses not covered by insurance was approved. In Re Marriage of Roberts, 545 N.W.2d 340 (Iowa App. 1996). See also In re Marriage ofRussell, 559 N.W.2d 636 (Iowa App. 1996).

e. In re Marriage of Okland, 699 N.W.2d 260 (Iowa 2005). The decree required thatstatements of unreimbursed medical expenses be submitted by one parent to the otherwithin 30 days of receipt of an uninsured debt. The Supreme Court canceled a judgmentfor the former husband’s share of the children’s expenses because their mother failed, without justification, to satisfy this condition precedent to the right to reimbursement: theprocedure to timely inform her former husband of the expenses so that he could reimburseher as the expenses were incurred.

f. In re Marriage of Nielsen, 759 N.W.2d 345 (Iowa App. 2008) Estoppel by acquiescence applies when: (1) a party has full knowledge of his rights and material facts; (2) remainsinactive for a considerable time; and (3) acts in a manner that leads the other party tobelieve the act [now complained of] has been approved. Markey v. Carney, 705 N.W.2d13, 21 (Iowa 2005). Here, Randall, an attorney, knew he was only obligated to payseventy-five percent. He did not seek to have Peggy pay her twenty-five percent for overeight and one-half years; and this behavior without an accounting led Peggy to reasonablybelieve he was waiving her twenty-five percent contribution.

E. CHILD CUSTODY AND VISITATION

1. Jurisdiction of the Court

a. Parental Kidnaping Prevention Act

Before an Iowa court can accept custody jurisdiction, the requirements of thefederal Parental Kidnaping Prevention Act [PKPA] and the Uniform Child CustodyJurisdiction Act [UCCJA] must be satisfied. The PKPA and UCCJA require thatbefore Iowa can modify, it must be the children=s Ahome state@ (six months=residence) and the state which entered the previous order must decline to exercisejurisdiction. In re Guardianship of T.H., 589 N.W.2d 67 (Iowa 1999).

-61-

b. Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA], Iowa Code Chapter598B, amended the Uniform Child Custody Jurisdiction Act in 1999 to bring it into conformitywith the PKPA and the Uniform Interstate Family Support Act (UIFSA).

(1) In determining initial jurisdiction, the Act gives the Ahome state@ priority as did the UCCJA;however, the concept of Exclusive Continuing Jurisdiction is adopted from the PKPA andUIFSA: the original decree state has the right to determine whether it or another state shallmodify custody and visitation so long as the child or either parent remain the original state.

In re Marriage of Pereault, No. 2-913/12-1178 (Iowa App., 2013). In June 2010, Shallonand Brian agreed that their child, K.P. would live with Brian in in Washington Statetemporarily and that the child would return to Shallon in Iowa in May 2011. However, inDecember 2010, Brian's intent changed when he learned of that Shallon had been chargedwith burglary and possession of drug paraphernalia and controlled substances. He decidedhe wanted K.P. to remain with him in Washington permanently; and on May 20, 2011,Brian filed a petition for custody in Washington. In July, 2011, Shallon filed the currentaction, claiming that Iowa, not Washington had jurisdiction to decide custody of K.P. IowaChild Custody Jurisdiction and Enforcement Act Section 598B.102(7) defines "home state"as "the state in which a child lived with a parent . . . for at least six consecutive monthsimmediately before the commencement of a child-custody proceeding. A period oftemporary absence of any of the mentioned persons is part of the period. Whether thejurisdictional requisites of the UCCJEA have been met is a question of subject matterjurisdiction. See In re Jorgensen, 627 N.W.2d 550, 554-55 (Iowa 2001). The Court heldthat while intent is a significant consideration in determining whether an absence is a"temporary absence," the intent of the parties should not be restricted to their intent existingat the time of leaving. In this case, the Court concluded that when Brian filed the petitionfor custody in Washington, K.P. was no longer temporarily absent from Iowa; and thatWashington, not Iowa, was the child's "home state" when Shallon filed her petition forcustody.

(2) Emergency jurisdiction is given separate consideration, and interstate judicial communica-tion is required in emergency and simultaneous filings in different states.

(3) The AUnclean Hands@ provision of the Act requires a court to deny jurisdiction if a party=sunjustifiable conduct provided the basis for jurisdiction.

(4) The Act also provides a new registration process for out-of-state orders and a newprocedure based on habeas corpus for expedited enforcement of child support andvisitation.

(5) In the Matter of Guardianship of Deal-Burch, 759 N.W.2d 341 (Iowa App. 2008). Chapter598B, the Uniform Child Custody Jurisdiction and Enforcement Act is the exclusivedeterminate of jurisdiction in child custody cases, including guardianship procedures. IowaCode § 598B.102(4). Since Iowa was the “home state” on the date of the guardianship wasfiled: “the state in which a child lived with a parent ... for at least six consecutive monthsimmediately before the commencement of a child-custody proceeding”, no court of anyother state would have jurisdiction. However, the home state can decline to acceptjurisdiction. Iowa Code §598B.207(1), (3).

-62-

c. Indian Child Welfare Act

The 2003 Iowa Legislature adopted substantial amendments to the Iowa Indian Child Welfare Act,Chapter 232, Iowa Code Previously the Iowa Indian Child Welfare Act simply implemented theFederal Indian Child Welfare Act , United States Code, Title 25, Chapter 21. The Iowa Act wassubstantially different than the federal act and was intended to apply to more cases and require moredeference and removal to Indian tribal courts. However, the application of the statute has beensignificantly limited by recent decisions:

(1) Both statutes seek to protect the rights of the Indian child as an Indian and the rights of theIndian community and tribe in retaining its children in its society. However, the Iowa law’s much more expansive definition of children who are AIndian@ has resulted in a findingthat the statute is unconstitutional. In re A.W., 741 N.W.2d 793 (Iowa 2007), theWinnebago Tribe attempted to intervene in s juvenile court case under ICWA, though thechild was ineligible for tribal membership. The Supreme Court ruled that the Iowa ICWA’sdefinition of “Indian Child” which did not require eligibility for tribal membership violatesthe Equal Protection Clauses of both the U.S. and Iowa Constitutions. United StatesSupreme Court and lower court decisions confirm that Congress may constitutionallylegislate only with respect to tribal Indians. United States v. Antelope, 430 U.S. 641, 645,97 S.Ct. 1395, 1399, 51 L.Ed.2d 701, 707 (1977).

(2) The provisions of the ICWA do not apply to paternity or child support, actions forprotective orders, or custody proceedings which only involve the biological parents of anchild who is or might be considered an AIndian@.

(3) However, the provisions of the ICWA do apply to terminations of parental rights, adoptionand preadoption proceedings, foster care proceedings and guardianships: cases in which thecustody of the child could be transferred to a caretaker who is not a biological parent. Ina child involved in such a proceeding is alleged to have native American heritage, the casemust be delayed until a special notice can be sent to the tribe or to the Secretary of the U.S.Department of Interior in Washington, D.C. and until tribal courts have an opportunity toreview the case and decide whether or not to remove the case to tribal court. Iowa Code'232B.5(4); In the Interest of R.E.K.F., 698 N.W.2d 147 (Iowa 2005).

(4) In re N.N.E., 752 N.W.2d 1 (Iowa 2008) The Iowa Indian Child Welfare Act required thata child must be placed with a member of the Indian child's family, other members of thetribe, another Indian family or a non-Indian family approved by the tribe or one committedto enabling the child to remain connected with the tribe unless there is clear and convincingevidence that placement would be harmful to the Indian child. The Supreme Court foundthat such a high burden to deviate from the placement preferences in a voluntarytermination case violated substantive due process. Parents' interest in their children's care,custody, and control is “ ‘perhaps the oldest of the fundamental liberty interests recognizedby [the Supreme Court].’ “ Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) (quotingTroxel v. Granville, 530 U.S. 57, 65-66. The Federal statute provides a less rigorous“good cause” standard which permits exceptions to the statute’s preference for placementwith an Indian family.

(6) In re N.V., 744 N.W.2d 634 (Iowa 2008). However, the ICWA still has some impact. Ina child in need of assistance (CINA) case, the Supreme Court found that the transfer totribal court was required because Iowa Indian Child Welfare Act Section 232B.5(10)mandates that a court shall transfer the proceeding to a tribal court upon a petition from theparents.

-63-

(7) Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013). The United States SupremeCourt that held that several sections of the Indian Child Welfare Act (ICWA) donot apply to Native American (Indian) biological fathers who were not custodiansof an Indian child. In 2009, a couple from South Carolina sought to adopt a childwhose father is an enrolled member of the Cherokee Nation and whose mother waspredominantly Hispanic. The Federal Indian Child Welfare Act bars involuntarytermination of parental rights in the absence of a heightened showing that seriousharm to the Indian child is likely to result from “continued custody” of the child. 25 U.S.C. §1912(f). Here, Biological Father informally agreed to relinquish hisparental rights while the mother was pregnant and provided no financial assistancefor the duration of the pregnancy and for the first four months after the child wasborn. However, when the adoptive parents served Biological Dad with notice ofthe pending adoption, Biological Father denied his consent and sought custody. Biological Father won his cases in trial court and on appeal with the state supremecourt. However, the U.S. Supreme Court held: (1) ICWA §1912(f) requires a“heightened showing” only when the rights of a “custodial” parent is intended tobe terminated, and here Biological Father never had custody; (2) ICWA §1912(d)requires “remedial services” before termination only when the “break up” of anestablished parent-child relationship is intended, and here there was no relation-ship; and (3) that ICWA §1915(a)’s preference for placement in a tribal familyapplied only when the objecting party is seeking an adoption,and here BiologicalFather was arguing that his parental rights should not be terminated.

2. Custody of Embryos

In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). As the result of in vitro fertilizationprocedures, the parties were responsible for seventeen fertilized eggs remained in storage under an"Embryo Storage Agreement." Tamera sought "custody" to have the embryos implanted in her ora surrogate mother. Trip did not want the embryos destroyed, but he did not want Tamera to usethem. The Supreme Court adopted the Contemporaneous Mutual Consent Model: The court willenforce agreements entered into at the time in vitro fertilization is begun, subject to the right ofeither party to change his or her mind about disposition up to the point of use or destruction of anystored preembryos. Thus, no transfer, release, disposition, or use of the embryos can occur withoutthe signed authorization of both donors. If a stalemate results, the embryos are stored indefinitelyand any expense associated with maintaining the embryos will be borne by the person opposingdestruction.

3. Joint Custody

a. Preference for Joint Custody

Joint custody of the minor children with physical care granted to one parent and liberalvisitation to the other has become the norm in Iowa.

(1) There is a difference between custody and physical care. "Custody" refers to aparent's rights and responsibilities toward the child in matters such as decisionsaffecting the child's legal status, medical care, education, extracurricular activities,and religious instruction. See Iowa Code Section 598.41(5). In Iowa, there is apreference for joint custody. Iowa Code Section 598.41. "Physical care", on theother hand, refers to the right and responsibility to maintain the principal home ofthe minor child and provide for the routine care of the child. See Iowa CodeSection 598.1(5).

-64-

(2) Section 598.41 requires the Court to consider granting joint custody even in caseswhere the parties do not agree to joint custody and sets out factors which the Courtmust consider before determining that joint custody is unreasonable and not in thebest interest of the child. "To deny joint custody requires a finding by clear andconvincing evidence that joint custody is not reasonable and not in the bestinterests of the child to the extent that the legal custodial relationship between thechild and the parent should be severed. In re Marriage of Holcomb, 471 N.W.2d76 (Iowa App. 1991). See also In re Marriage of Bulanda, 451 N.W.2d 15 (IowaApp. 1989).

b. Sole Custody

(1) The parents' lack of communication and mutual support or a history of domesticabuse may overcome the preference for joint custody.

(2) The Court found that joint legal custody was unworkable and ordered sole legalcustody to the father because the parents did not get along and were barely civil toone another. In re Marriage of Winnike, 497 N.W.2d 170 (Iowa App. 1992). Seealso In re Marriage of Eilers, 526 N.W.2d 566 (Iowa App. 1994) and In reMarriage of Brainard, 523 N.W.2d 611 (Iowa App. 1994).

(3) AIt is very likely that the parties will not be able to agree on many of the fundamen-tal decisions that must be made in children=s lives, such as education and medicaltreatment. The vesting of such decision-making power in one parent thus seemspreferable. In re Marriage of Rolek, 555 N.W.2d 675 (Iowa 1996).

(4) Fernander v. Wenner, No 2-311/11-1972 (Iowa App., 2012). Brian sought jointlegal custody and visitation with his two children, sixteen and fourteen, though hehad not seen them since birth and had communicated with them for only the pastfive years. Tammy resisted visitation because Brian had ignored the children forseveral years and stated that no visitation had occurred because Brian wasunwilling to work within the guidelines recommended by the children’s counselor. The children each testified with only the judge and the attorneys present that theywere not then interested in visiting Brian or having contact with him. The Courtgranted sole legal custody to Tammy. If joint legal custody is not granted, thecourt must cite clear and convincing evidence that joint legal custody is unreason-able and not in the best interests of the children, to the extent that the legalcustodial relationship between the child and the parent should be severed. IowaCode § 598.41(2)(b); In re Marriage of Holcomb, 42,1 N.W.2d 76 (Iowa Ct. App.1991). Since Brian has practically no personal knowledge of what is in the bestinterest of these children, it would be impossible for him to make informeddecisions that a custodial parent must make. The court also noted that becauseBrian lived in Florida, it was unlikely he would be able to develop the understand-ing and knowledge necessary to enable him to make decisions in the children's bestinterests.

(5) In re Pelletier, No.30378/12-1704 (Iowa App. 2013). Paul and Karen had severedifficulties in communicating and in supporting one another. Paul was responsible for onedocumented incident of domestic abuse. However, the Court found this insufficient toconstitute a history of abuse under the statute. In re Marriage of Forbes, 570 N.W.2d 757,760 (Iowa 1997). More important a broad examination of Paul's behavior and parentinghistory, showed that joint custody would have a positive impact on the parties child, N.P.

-65-

Joint custody is preferred because it will often encourage the parties to improve theirrelationship and allow both to enjoy parenthood. In re Marriage of Weidner, 338 N.W.2d351, 359 (Iowa 1983). Sole legal custody must be justified by convincing evidence thatjoint custody is unreasonable and warrants the serious step of severing the parentalrelationship between the child and noncustodial parent. See In re Marriage of Bartlett, 427N.W.2d 876, 878 (Iowa Ct. App. 1988). Both parties had placed N.P. in the middle byfailing to shield the child from the ugliest aspects of this dissolution, and Karen listenedin on telephone calls between N.P. and Paul. Paul had spoken in a derogatory andinaccurate way about Karen in front of the child, and he placed both mother and child inperil by disconnecting utilities and refusing to allow the home to be sold, which would beto the financial advantage of all. Since Karen and Paul were unable to deal with one anotherin a respectful and reasonable manner,joint physical care was impossible; so the Courtconcluded that Karen was in the best position to care for N.P. on a daily basis as primarycaretaker.

c. Joint Physical Care

(1) Joint physical care is defined as: >An award of physical care of a minor child to both jointlegal custodial parents under which both parents have rights and responsibilities toward thechild including, but not limited to, shared parenting time with the child, maintaining homesfor the child, providing routine care for the child and under which neither parent hasphysical care rights superior to those of the other parent.= Iowa Code Section 598.1(4)(2003).

(2) In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) The recent changes in Iowa Code§598.41(5) do not create a presumption in favor of joint physical care. However, old caselaw strongly disfavoring joint physical care are outdated. Each case must be decided onits unique facts. The traditional factors set out in Iowa Code § 598.41(3) and cases like Inre Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), still control; and physicalcare issues must focus not on what is fair for the parents, but primarily upon what is bestfor the child. The Court identified four primary factors to be taken into consideration:

(a) Stability and Continuity is the most significant factor where there are twosuitable parents is stability and continuity of caregiving. In re Marriage of Bevers,326 N.W.2d 896, 898 (Iowa 1982). Long-term, successful, joint care is asignificant factor in considering the viability of joint physical care after divorce. In re Marriage of Ellis, 705 N.W.2d 96, 103. The American Law Institute'sPrinciples of Family Law, suggests an “Approximation Rule”: custodialresponsibility should be allocated “so that the proportion of custodial time the childspends with each parent approximates the proportion of time each parent spentperforming caretaking functions for the child prior to the parents' separation....”Principles § 2:08, at 178. By focusing on historic patterns of caregiving, theapproximation rule provides a relatively objective factor for the court to considerthough other circumstances may outweigh considerations of stability, continuity,and approximation.

Cline v. Swanson, No. 3-375/12-1575 (Iowa App., 2013). Bonnie and Lee weregranted joint physical care of Caroline in alternating weeks until the child beginkindergarten. At that time, Lee was granted primary physical care. Although bothparties provide excellent care for their daughter, the evidence showed that Lee isthe more stable parent. Stability was the tie-breaker: Lee has shown moreconstancy in his work and living arrangements than Bonnie. Bonnie changed not

-66-

only jobs, but careers. She has moved frequently, including a relocation that placedCaroline a significant distance away from her father. Lee had held the same job inthe same location since 2008 and had a better support system because hemaintained bonds with friends he has known since childhood.

(b) Communication and Respect. A lack of trust poses a significant impediment toeffective co-parenting and it is an important factor that the Court directs forconsideration in determining whether to require joint physical care. The parentsmust have the ability to communicate and show mutual respect. In re Marriage ofHynick, 727 N.W.2d 575, 579 (Iowa 2007) at 580; In re Marriage of Ellis, 705N.W.2d 96 (Iowa Ct.App.2005) at 101; Iowa Code §598.41(3)(c ).

(c) The Degree of Conflict. Joint physical care requires substantial and regularinteraction between divorced parents on a myriad of issues. Where the parties'marriage is stormy and has a history of charge and countercharge, the likelihoodthat joint physical care will provide a workable arrangement diminishes.

(d) Agreement about Child Rearing Practices. The degree to which the parents arein general agreement about their approach to daily matters is important, especiallywhen the past relationship has been turbulent. In re Marriage of Burham, 283N.W.2d 269 (Iowa 1979) (citing Dodd v. Dodd, 93 Misc.2d 641, 647, 403N.Y.S.2d 401 (S.Ct.1978).

(3) In re Marriage of Cerwick No. 3-300/12-1188 (Iowa App., 2013). NeitherJustin notMachelle requested joint physical care. Both parties conceded that joint physical care wasnot appropriate; and the record showed that the parties’ relationship was "highly contentiousand filled with acrimony"—including several unfounded child abuse allegations and policeintervention. Nevertheless the trial court grant joint physical care to the parties. However,the Court of Appeals reversed, finding that the issue of joint physical care not properlybefore the district court and not in the children's best interest. See Iowa Code §598.41(5)(a); In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) and In reMarriage of Hynick, 727 N.W.2d 575, 580 (Iowa 2007) . Justin alleged that Machelle'sparenting style is irresponsible, that she improperly clothed the children and is responsiblefor the children's frequent tardiness and absence from school. Machelle attacked Justin'sparental style as overly controlling and physically and verbally abusive. The Court ruledthat since Justin had been the primary caregiver since the parties separated in February,2011; and becasue the children have enjoyed relative stability and responsible care underhis supervision. The principles of continuity, stability, and approximation favored placingphysical care with Justin. See In re Marriage of Hansen, 733 N.W.2d at 700.

(4) In re Marriage of Ellis, 705 N.W.2d 96 (Iowa App. 2005). The trial court had noconfidence in the ability of the parties to reach mutually agreed decisions. The Court ofAppeals stated that section 598.41(5) “constitutes neither a ringing endorsement of jointphysical care, nor a mandate for courts to grant joint physical care unless the best interestof the child requires a different physical care arrangement.@ Still, the Court noted theparties' highly successful shared care of Paxton from his birth to the time of the dissolutiontrial; and awarded the parties joint physical care of Paxton.

(5) In re Marriage of Hynick, 727 N.W.2d 575 (Iowa 2007). Before and during dissolution,Holly obtained no-contact orders against Bradley. Several times during the proceeding,harassing, threatening and immature incidents occurred; and police intervention was neededat least twice. Joint physical care parents not only will have equal, or roughly equal,

-67-

residential time with the child.; but since neither parent has rights superior to the other withrespect to the child’s routine care, joint physical care also envisions shared decision makingon all routine matters. Obviously, such decision making requires good communicationbetween the parents as well as mutual respect. The history of domestic abuse and inabilityto cooperate in this case made joint physical care impossible.

d. Split/Divided Custody

(1) Split custody or divided physical care occurs when each parent is granted primaryphysical care of at least one of the children of the parties.

(2) ASplit custody of children is warranted if good and compelling reasons exist fordividing custody ... Specifically, separation of children is justified when it is foundto better promote their long-range best interest." In re Marriage of Harris, 530N.W.2d 473, 474 (Iowa App. 1995). See also in In Re Marriage of Pundt, 547N.W.2d 243 (Iowa App. 1996).

(3) Aside from the caretaking capability of the parties, other factors are considered indetermining whether separation is in the best interests of the children. Forexample, a court should consider the difference in age between the childrenseparated, e.g., In re Marriage of Kurth, 438 N.W.2d 852, 854 (Iowa App. 1989);whether the children would have been together if split physical care was notordered, e.g., Id.; the [relationship] between the children, e.g., Jones, 309 N.W.2dat 461; and the likelihood that one of the parents or children would turn otherchildren against the other parent, e.g., In re Marriage of Wahl, 246 N.W.2d 268,270-71 (Iowa 1976). These and other factors are also discussed In Annotation,Child Custody: Separating Children by Custody Awards to different Parents-Post-1975 Cases, 67 A.L.R.4th 354 (1989)." In re Marriage of Will, 489 N.W.2d 394(Iowa 1992).

4. Determination of Primary Caretaker

a. Basic Factors/Winter Case

The fundamental guidelines for the determination of custody were set out in In re Marriageof Winter, 223 N.W.2d 165, 166-167 (Iowa 1974). Though these factors were establishedas guidelines to the Court in determining sole custody, the principles are equally applicableto the determination of the primary physical custodian of the child: (1) The characteristicsof 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 interestof each parent to provide for the emotional, social, moral, material and educational needsof the child; (5) the interpersonal relationship between the child and each parent; (6) theinterpersonal relationship between the child and its siblings; (7) the effect on the child ofcontinuing or disrupting an existing custodial status; (8) the nature of each proposedenvironment, including its stability and wholesomeness; (9) the preference of the child, ifthe child sufficient age and maturity; (10) the report and recommendation of the attorneyfor the child or other independent investigator; (11) available alternatives; and (12) anyother relevant matter the evidence in a particular case may disclosed.

In Neubauer v. Newcomb, 423 N.W.2d 26 (Iowa App. 1988) the Court confirmed that theWinter criteria governing the determination of custody apply whether parents are dissolving

-68-

a marriage or are unwed. See also Lambert v. Everist, 418 N.W.2d 40 (Iowa 1988); In reMarriage of Dunkerson, 485 N.W.2d 483 (Iowa App. 1992).

b. General Principles

(1) Long-Range Best Interests

In determining child custody the Court's major concern is the best interests of the child andthe objective is placement in an "...environment most likely to bring the children to healthyphysical, mental and social maturity." In re Marriage of Bartlett, 427 N.W.2d 876 (IowaApp. 1988). See also In re Marriage of Collingwood, 460 N.W.2d 486 (Iowa App. 1990);In re Marriage of Krone, 530 N.W.2d 468 (Iowa App. 1995); and In re Marriage of Buttrey,538 N.W.2d 322 (Iowa App. 1995).

(2) Deference to Trial Court: Credibility and Demeanor.

In re Rhyan, 755 N.W.2d 140 (Iowa 2008) The Supreme Court reversed the Court ofAppeals in a close case in which for every claim against one of the parties, a balancingexplanation exists. The district court had the opportunity to observe the parties andwitnesses and concluded that it was in the child's best interests to grant primary physicalcare to the mother. “This case represents a ‘prime example of a close custody case wherewe should defer to the trial court's detailed fact-findings and credibility assessment.” SeeIn re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007) .” See also In re Marriage ofEngler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993).

(3) Psychological Factors

(a) A ... Care must be exercised in judging a parent based on activities which take placeduring a particular time frame of the marriage, such as the separation or break upof the relationship. Instead, a better picture of a parent can be found by viewingthe total circumstances and putting isolated events into perspective. In re Marriageof Ihle, 577 N.W.2d 64, 69 (Iowa App. 1998).

(b) In re Marriage of Rebouche, 587 N.W.2d 795 (Iowa App. 1998). To effectivelyaid the court in making difficult custody determinations, the court should be ableto have confidence in the neutrality of the evidence and testimony provided by thevery experts the court appoints to carry out this critical function. Absent thatneutrality, the expert testimony fails in its function, and the court has lost theassistance it anticipated.

(c) The Court of Appeals approved the Trial Court's decision to give little weight tothe psychologist's testimony because the psychologist was not revealed in advanceand had not met with the custodial parent before making a custody recommenda-tion. In re Marriage of Scheffert, 492 N.W.2d 203 (Iowa App. 1992). See also In re Marriage of Lacaeyse, 461 N.W.2d 475 (Iowa App. 1990).

(4) Preference for Primary Caretaker

The fact that a parent was the primary caretaker prior to separation does not assure he or shewill be the custodial parent. See In re Marriage of Toedter, 473 N.W.2d 233, 234 (IowaApp. 1991). However, consideration is given in any custody dispute to allowing the childto remain with a parent who has been a primary caretaker so as to enable the children to

-69-

have continuity in their lives. In re Marriage of Moorhead, 224 N.W.2d. 242, 244 (Iowa1974). See also In Re Marriage of Kunkel, 555 N.W.2d 250 (Iowa App. 1996). But see Inre Marriage of Wilson, 532 N.W.2d 493 (Iowa App. 1995).

(5) Sexual Orientation of Parent

"Discreet homosexual parents will not be denied visitation or custody merely because of their sexualorientation ... the district court properly saw Kelly's sexual orientation as a non-issue and focusedits decision on the relative parenting abilities of [the parties]." In re Marriage of Cupples, 531N.W.2d 656, 657 (Iowa App. 1995). See also, Hodson v. Moore, 464 N.W.2d 699, 701 (Iowa App.1990); In re Marriage of Wiarda, 505 N.W.2d 506 (Iowa App. 1993).

(6) Moral Misconduct/Child Endangerment

We do not place great emphasis on [the mother's] relationship with another man during the latterpart of the marriage. Although "moral misconduct" is a consideration in custody determinations,it is only one factor ... the children were never placed in danger by her activities." In re Marriageof Wilson, 532 N.W.2d 493 (Iowa App. 1995). See also In re Marriage of Burkle, 525 N.W.2d43917 (Iowa App. 1994); In Re Marriage of Kunkel, 546 N.W.2d 634 (Iowa App. 1996).

(7) Hostility/Promote Noncustodian's Relationship

Iowa courts do not tolerate hostility exhibited by one parent to the other, and the parents have aresponsibility to assure that their parents will not interfere with the other’s relationship with thechildren. Here, the Court found that the maternal grandparents had shown excessive animositybased on the father=s failure to provide financial support, but found that the grandparents= conductwas not sufficient to deny custody to the mother. In re Marriage of Crotty, 584 N.W.2d 714 (IowaApp. 1998). See also In re Marriage of Rosenfeld, 524 N.W.2d 212 (Iowa App. 1994); In reMarriage of Shanklin, 484 N.W.2d 618 (Iowa App. 1992); and In re Marriage of Abkes, 460N.W.2d 184 (Iowa App. 1990).

(8) Gender of Parent Irrelevant

No hard and fast rule governs which parent should have custody. However, the Court abandonedthe inference that young children should be in the custody of their mother. In re Marriage ofBowen, 219 N.W.2d 683 (Iowa 1974). "The real issue is not the sex of the parent but which parentwill do better in raising the children" and "neither parent should have a greater burden than the otherin attempting to gain custody in a dissolution proceeding." 219 N.W.2d at 688. See also In reMarriage of Pokrzywinski, 221 N.W.2d 283 (Iowa 1974); In re Marriage of Lacaeyse, 461 N.W.2d475 (Iowa App. 1990); In re Marriage of Sprague, 545 N.W.2d 325 (Iowa 1996).

(9) Marital Status/Cohabitation

The criteria governing child custody determinations are the same regardless of whether the parentsare dissolving their marriage or have never been married to each other. Hodson v. Moore, 464N.W.2d 699, 700 (Iowa App. 1990). See also In re Marriage of Pettit, 493 N.W.2d 865 (Iowa App.1992).

(10) Religion

Section 598.41(5) provides that both parents should be involved in decisions about religiousinstruction. However, the court will not prescribe the kind of instruction the children will receive.

-70-

Each parent may be a role model and provide his or her own instruction to the children. In reMarriage of Moore, 526 N.W.2d 335 (Iowa App. 1994). See also, Petition of Deierling, 421N.W.2d 168 (Iowa App. 1988); In re Marriage of Rodgers, 470 N.W.2d 43 (Iowa App. 1991); Inre Marriage of Anderson, 509 N.W.2d 138 (Iowa App. 1993).

(11) Cultural Beliefs

The mother, born in Havana, was volatile emotionally and perhaps a bit erratic, and she maintainedbecause of her Hispanic cultural beliefs, she could not be an adequate parent unless she was thecustodial parent. The Supreme Court granted custody to her, rather than her more stable andflexible family therapist husband. Although she could adjust her style to accommodate the non-custodial role, the adjustment would be particularly difficult. In re Marriage of Kleist, 538 N.W.2d273 (Iowa 1995).

(12) Stable Environment

(a) AMinimal changes in physical environment may result in greater emotional stability. However, our case law places greater importance on the stability of the relationship betweenthe child and the primary caregiver over the physical setting of the child.@ Here, the fathercould provide environmental stability, but the mother had provided the majority of care tothe children and had been their emotional anchor. In re Marriage of Williams, 589 N.W.2d759 (Iowa App. 1998).

(b) A mother quit her job as a teacher to obtain a degree in civil engineering. Both parties weregood parents, but primary care was granted to the father because he had more stability inhis life and would keep the children in the same school district, while the mother=s futuredepended on where she found employment after her degree was earned. In Re Marriage ofHart, 547 N.W.2d 612 (Iowa App. 1996). See also In Petition of Anderson, 530 N.W.2d741 (Iowa App. 1995).

(13) Child's Preference

In In re Marriage of Ellerbroek, 377 N.W.2d 257 (Iowa App. 1985), the Court of Appeals delineatedthe considerations for determining the weight to be given a child's preference In determiningcustody: (1) Age and educational level, (2) Strength of preference, (3) Intellectual and emotionalmakeup of child, (4) Relationship with family members, (5) Reason for decision, (6) Advisabilityof recognizing teenagers' wishes, and (7) Recognition that we are not aware of all factors thatinfluence decision. See also In Re Marriage of Fynaardt, 545 N.W.2d 890 (Iowa App. 1996).

In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013). The trial court granted jointphysicial care of the two children to Tammy and James. Parenting time was equally divided: eachhad the children in alternate weeks. James appealed and sought primary physical care of thechildren because both children testified they prefer to live with him. Here, the Court found that bothparents are capable and suitable custodians and that they satisfied the four-factor test for jointphyscial care. In re Marriage of Hansen, 733 N.W.2d 683, 685 (Iowa 2007). The Court alsoconsidered the wishes of the children. See Iowa Code § 598.41(3)(f). The children were old enoughat the time of trial that their wishes deserve some weight in our determination. See In re Marriageof Jones, 309 N.W.2d 457, 461 (Iowa 1981). However, the Court was not swayed by the children’sstated preference, especially because there was some question as whether the daughters' desire tolive with their father was motivated by economic concerns: James bought the younger daughter aniPod in the days leading up to trial and had paid the bill to have the older daughter's cell phoneturned back on after a fight she had with Tammy.

-71-

In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013). Kellie was held in contemptof court and gave custody of their 13-year-old daughter to Matthew. Kellie maintained she withheldvisitation to protect the child, the Court found that she "has completely and totally alienated herchild from [Matthew]." Because of the alienation, the child did not want to live with Matt. IowaCode section 598.41(3)(f) (2011) provides that a child’s custody preference should be consideredwhen the child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment. However, the analysis involved in deciding custody is "far more complicated than asking childrenwith which parent they want to live." In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct. App.1991). The Court found that the efforts by Kellie to prevent Matthew and the child from havinga relationship outweigh the thirteen year-old's desire to remain with Kellie. In addition, a child'spreference is entitled to less weight in a modification action than would be given in an originalcustody proceeding. In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).

(14) Domestic Abuse

(a) Chapter 598 and several other statutes were amended in 1995 to add provisions whichdramatically affect the way domestic relations courts deal with families in which there hasbeen a history of domestic abuse.

[1] Section 598.41(1)(b) now provides that if the court finds that a history of domesticabuse exists, a rebuttable presumption against the awarding of joint custody exists;and Section 598.41(2)(c) now provides that if a history of domestic abuse exists,which is not rebutted, this factor shall outweigh consideration of any other factorin determination of awarding of custody.

[2] Section 598.41(1)(c) now provides that the requirement that visitation be structuredto provide for maximum continuing contact between the non-custodial parent andchild will be eliminated if the court determines that a history of domestic abuseexists between the parents.

[3] Section 598.41(1)(d) provides that if a history of domestic abuse exists, the courtshall not consider the relocation or absence of a parent as a factor against thatparent in awarding custody or visitation if the parent is a domestic abuse victim.

(b) Section 236.2(e) includes among the persons protected from domestic abuse those in“intimate relationships@. The statute includes a list of factors to be considered to determinewhether an intimate relationship existed at the time of the abuse, but defines an Aintimaterelationship@ as a significant romantic involvement that need not include sexual involve-ment, but is something more than a social or professional relationship. In addition, thestatute recognizes that a person may be involved in more than one Aintimate relationship@at the same time.

(c) Even before the statutes were amended, the Court of Appeals denied custody to a fatherlargely because of his history of domestic abuse. The Court found that children raised inhomes touched with domestic abuse are often left with deep scars revealed in increasinganxiety, insecurity, a greater likelihood for later problems in interpersonal relationships, andlow self-esteem. Also abuse places children at greater risk of being physically abused. Inre Marriage of Brainard, 523 N.W.2d 611 (Iowa App. 1994).

(d) In re Marriage of Ford, 563 N.W.2d 629 (Iowa 1997). The 1995 amendments create arebuttable presumption against joint custody, but, A ... any evidence of abuse does not

-72-

automatically and as a matter of law preclude joint custody. Rather, we must consider theevidence in determining whether such a presumption is sustainable.@

(e) “We do not minimize the seriousness of domestic abuse and the negative impact it has onchildren. However, we also recognize some relationships are mutually aggressive, bothverbally and physically. In those situations, a claim of domestic violence must not be usedby either party to gain an advantage at trial, but should be reserved for the intended purpose-- to protect victims from their aggressors.@ In re Marriage of Barry, 588 N.W.2d 711 (IowaApp. 1998). See also In re Marriage of Forbes, 570 N.W.2d 757 (Iowa 1997).

(f) However, a history of domestic abuse is not easily overcome. AWe believe evidence ofuntreated domestic battering should be given considerable weight in determining theprimary caretaker, and under some circumstances, should even foreclose an award ofprimary care to a spouse who batters." In re Marriage of Daniels, 568 N.W.2d 51 (IowaApp. 1997).

(g) In Wilker v. Wilker, 630 N.W.2d 590 (Iowa 2001), Paula stood by while others pushed,held, and roughed up Timothy while she removed the child from the house. The Court heldthat an Aassault@ is any act which is intended to cause pain or injury or result in physicalconduct which will be insulting or offensive to another and Aaiding and abetting@ isassenting to or lending countenance and approval by active participation or encouragement.

(15) Preference for Parent

(a) There is a presumption in favor of the parents in custody determinations. See The CodeSection 633.559 (preference for parents to serve as guardians of minors). The preferencefor natural parents extends to non-custodial parents where the custodial parent has died orhas been judicially adjudged incompetent. Iowa Code Section 598.41(6). In applying thisprincipal " ... we have acted in some cases to remove children from conscientious, well-intentioned custodians with a history of providing good care ... and placed them with anatural parent. Zvorak v. Beireis, 519 N.W.2d 87 (Iowa 1994). Northland v. McNamara,581 N.W.2d 210 (Iowa App. 1998). Parents should be encouraged in time of need to seekassistance in caring for their children without risk of losing custody. In re Guardianship ofSams, 256 N.W.2d 570, 573 (Iowa 1977).

Maruna v. Peters, No. 2-945/12-0759 (Iowa App., 2013). Cory Maruna and SamanthaPeters, unmarried parents of a child, born in 2005, were young, had problems, and agreedto place the child in a guardianship with Samantha's mother, Kimberly. The child was laterdiagnosed with cerebral palsy and received excellent physical and mental care from Kimuntil 2012 when Cory sought custody. Both Samantha and Cory had matured intoresponsible adults. The Court noted that Cory expressed a keen interest in the child and hadassisted in caring for the child in recent years, but he only attended one cerebral palsy clinicand only four of seventeen special therapy appointments in the previous year. Additionally,Cory conceded that the child would have to change schools if he acquired custody, leadingto further disruption of the physical and mental health of this fragile child. For that reason,the Court of Appeals reversed the district court's termination of the guardianship and dismissed Cory's custody and termination of guardianship petitions. Iowa Code §633.559grants a preference for custody to parents; and Kimberly had "the burden to overcome theparental preference and show that the best interest of [the child] required continuation ofthe guardianship." In re Stewart, 369 N.W.2d 821. However, the Court found she provedthat return of custody to the natural parent would likely have a seriously disrupting and

-73-

disturbing effect upon the child's development. In re Guardianship of Knell, 537 N.W.2d778, 782 (Iowa 1995).

(b) Iowa Code Section 232.104(7) permits the Juvenile Court to close a Child in Need ofAssistance case by transferring jurisdiction over the child’s guardianship to the probatecourt for continuing supervision. Section 633.559 has been amended to cancel the statutorypreference granted to parents in cases which have been transferred under Section 232.104.

(c) Preference Rebuttable. The preference favoring parents as custodians is rebuttable due tothe essential governing consideration, that being the best interest of the child. However, anon-parent may gain custody if the parent seeking custody is proven to be unfit orsubstantially inferior. In Matter of Guardianship of Stodden, 569 N.W.2d 621 (Iowa App.1997). AA parent who fails to develop a relationship with his or her child while that childis establishing a family relationship with a stepparent must recognize the child thereby putsdown roots that are of critical importance. Courts must carefully deal with those roots indetermining the child=s best interests. ... If return of custody to the child=s natural parent islikely to have a seriously disrupting and disturbing effect on the child=s development, thisfact must prevail.@ In re Guardianship of Knell, 537 N.W.2d 778 (Iowa 1995).@ Stoddenat 624-625. See also In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994); In reMarriage of Liebich, 547 N.W.2d 844 (Iowa App. 1996) (grandmother intervened indissolution action); In re Marriage of Corbin, 320 N.W.2d 539 (Iowa 1982) (foster parentintervened in dissolution action and was awarded custody in dissolution decree); In reMarriage of Reschly, 334 N.W.2d 720 (Iowa 1983) (custody awarded to grandparents onPetition of Intervention); and In re Marriage of Swanson, 586 N.W.2d 527 (Iowa App.1998) [temporary custody to a stepfather].

(d) In re Guardianship of Hall, 666 N.W.2d 619 (Iowa App.2003). The law presumes that thechildren’s best interests will best be served by placing them in the care of their naturalparents, assuming they are qualified and suitable. In re Guardianship of Stewart, 369N.W.2d 820, 822 (Iowa 1985). The guardians have the burden to rebut the presumption ofsuitability and show that the child's best interests require a continuation of the guardianship.Stewart, 369 N.W.2d at 824. The only evidence sufficient to overcome the preference forthe parents is proof that the transfer of custody to a parent would have a "seriouslydisrupting effect upon the child's development, this fact must prevail." Painter v. Bannister,258 Iowa 1390, 1396, 140 N.W.2d 152, 156 (1966). That showing was not made here.

(e) In re D.A.B.P., No. 2-689 /12-0237 (Iowa App., 2012). The Court refused to superimposethe standards from Chapter 232, the Juvenile Justice Act, onto this guardianshipproceedings. The grandmother presented clear and convincing evidence that her daughter,D.A.B.P.'s mother, was not a qualified or suitable care giver at this time and that it was inthe child's best interest to be placed with the grandmother. See In re Guardianship of M.D.,797 N.W.2d 121 (Iowa Ct. App. 2011). The court was concerned with the mother's patternof instability; and noted that the mother had not been regularly caring for her son during theeighteen months leading up to trial.

(16) Equitable Parent Doctrine.

(a) In In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995), the Iowa Supreme Courtestablished a far-reaching new principle when it adopted the Equitable Parent Doctrine. Indoing so, the Court distinguished several cases, notably Petition of Ash, 507 N.W.2d 400,403 (Iowa 1993) and In re Halvorson, 521 N.W.2d 725, 728 (Iowa 1994), in which it hadspecifically rejected the equitable parent doctrine. "Applying general equitable principles,

-74-

we believe equitable parenthood may be established in a proper case by a father whoestablishes all of the following: (1) he was married to the mother when the child wasconceived and born; (2) he reasonably believes he is the child's father; (3) he establishes aparental relationship with the child; and (4) shows that judicial recognition of therelationship is in the best interest of the child."

(b) Although Section 600B.41A, the Action to Overcome Paternity Statute, was not argued inGallagher, the Gallagher court noted that the then newly created Section 600B.41A "maycontrol future cases presenting similar issues.".

(c) In Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999), the Supreme Court recognizedthe legislative distinction between an action to establish paternity and an action to overcomepaternity. Once paternity has been established by operation of law, established paternitycan be overcome only through Section 600B.41A. The law deems the husband to be thechild's father by virtue of his marriage to the child's mother. In Skiles, the Court found adenial of Due Process Iowa Code Section 600B.41A(3) which denied a biological parentthe right to establish his paternity because he was not authorized under the statute tocommence an action to overcome paternity. The case was remanded for a determinationof whether the biological father had waived his right to challenge the established paternity.

(17) Nomination In Will

There are three tiers of preference for guardians in Iowa Code Section 633.559: (1) parents; (2)will-nominated guardians; and (3) qualified and suitable people requested by minors 14 years oldor older. "Subject to these preferences, the Court shall appoint as guardian a qualified and suitableperson who is willing to serve in that capacity ... These statutory preferences create a rebuttablepresumption." In re Marriage of Robinson, 530 N.W.2d 90, 92 (Iowa App. 1994).

(18) Preference for Other Family Members

(a) "The Court should not simply make an effort to select the best person to raise the child,irrespective of family ties...we believe our past jurisprudence...emphasizes the importanceof keeping the child within the family whenever possible." Matter of Guardianship of Reed,468 N.W.2d 819 (Iowa 1991). See also Holmes v. Derrey, 127 Iowa 625, 103 N.W. 973(1905).

(b) A person may intervene only during the pendency of an action (IRCP 75). To havestanding to initiate a modification proceeding, a person must have a specific,personal, and legal interest in the litigation and be injuriously affected. This agrandparent does not have. In re Marriage of Mitchell, 531 N.W.2d 132 (Iowa1995). Still, a grandparent (or others) may file a petition for guardianship orinitiate a proceeding to have the child found to be in need of assistance in juvenilecourt.

5. Tortious Interference with Custody

Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005). To establish a claim of tortious interference withcustody, a plaintiff must show (1) the plaintiff has a legal right to establish or maintain a parentalor custodial relationship with his or her minor child; (2) the defendant took some action oraffirmative effort to abduct the child or to compel or induce the child to leave the plaintiff's custody;(3) the abducting, compelling, or inducing was willful; and (4) the abducting, compelling, orinducing was done with notice or knowledge that the child had a parent whose rights were thereby

-75-

invaded and who did not consent. See 67A C.J.S. Parent and Child §322, at 409 (2002). Wood v.Wood, 338 N.W.2d 123 (Iowa 1983). Here, the mother kept her daughter for nearly three yearsafter her former husband was awarded physical care; she provided the child with the means to runaway, and she disobeyed direct orders from the judge to keep the child in Iowa.

6. Appointment of Guardian Ad Litem or Child’s Attorney

Iowa Code §598.12(1) applies to a child's attorney and gives the attorney power to makeindependent investigations and to call witnesses relating to the legal interests of the children. Section 598.12(2) gives a guardian ad litem more extensive duties, including interviewing theparties, visiting the home, interviewing others providing services to the child, and obtainingfirsthand knowledge of the facts and parties involved in the matter. However, an attorney for thechild has no power to testify as a witness. Even a GAL’s report, like a social worker’s narrativewould be inadmissible as hearsay. The supreme court has stated, “Unless a social worker's writtenreport is properly before the court by agreement or stipulation, it should not be considered after aproper objection.” In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981).

7. Visitation and Other Rights and Responsibilities of Joint Custody

a. Statutory Criteria

(1) Section 598.1(6) and Section 598.41(1) now provide that, except in unusualcircumstances, the best interests of the child require "...the opportunity formaximum continuous physical and emotional contact with both parents, and thatrefusal by one parent to provide this opportunity to the other without just cause,shall be considered a significant factor in determining the proper custodyarrangement.

(2) Both parents shall have legal access to information concerning the child, includingbut not limited to medical, educational and law enforcement records (Section598.41[1]); and joint custodial parents are entitled to "...equal participation indecisions affecting the child's legal status, medical care, education, extracurricularactivities and religious instruction." (Section 598.4[5]). However, if a history ofdomestic abuse exists, a party’s visitation rights can be seriously affected.

b. Rights and Responsibilities of Joint Custodians

(1) Basic Rights and Responsibilities

In re Marriage of Fortelka, 425 N.W.2d 671owa App. 1988) specifies the followingrights and responsibilities of joint custodians: (a) to participate equally in decisionsaffecting the child's legal status, medical care, education, extracurricular activitiesand religious instruction; (b) to communicate with each other; in particular, thephysical custodian has a responsibility, except in emergencies to share information(conference slips, report cards, medical appointments, etc.) about the need to makedecisions and to make the information available to the other parent; (c) to supportthe other parent's relationship with the child; (d) to put away personal animositiesand work together as mature adults with medical and school personnel to meet thechild's needs; (e) to structure visitation flexibly, taking the child's educational andsocial activities into consideration; and (f) to assure that transition between homesis without problems.

-76-

(2) Religious Instruction

"Under the plain language of this provision [Iowa Code Section 598.41(5)], both parties areentitled to participate in deciding questions regarding the religious instruction of thechildren. We will not prescribe what type or form of religious instruction should beprovided for the children, nor which parent should be responsible for the religious instructionof the children." In re Marriage of Craig, 462 N.W.2d 692 (Iowa App. 1990).

(3) Access to Law Enforcement Records

A non-custodial parent has a right to access to information concerning his or her minorchild's law enforcement records. ... The duty to keep juvenile law enforcement recordsconfidential does not exclude either parents' access. Here the District Court had quashed thefather's subpoena to juvenile court demanding his son's records. In re Marriage of Maher,510 N.W.2d 888 (Iowa App. 1993).

(4) Access to Child’s Psychological Records

Harder v. Anderson, 764 N.W.2d 534 (Iowa 2009). Although Iowa Code §598.41(1)(e )guarantees both parents “legal access” to a child's medical records, the section does not giveeither parent an absolute right to those records. Under Chapter 598, the best interests of thechild always prevail. See In re Marriage of Bingman, 209 N.W.2d 68, 71 (Iowa 1973). TheCourt concluded that Susan was not entitled to obtain the mental health records of herchildren because the release of the records was not in the best interest of the children;overruling Leaf v. Iowa Methodist Med. Ctr., 460 N.W.2d 892 (Iowa App.1990).

(5) Right to Name Child

(a) In an initial determination of a child’s name, each parent has the right to equallyparticipate in decisions affecting Athe child=s legal status@under Iowa Code Section598.41(2); and an infant child=s name is an incident of the child=s Alegal status@. Inre Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993). The court=s namechange authority for children born outside of marriage derives from section 600B.40which makes section 598.41 applicable to proceedings concerning the custody andvisitation of a child born to unmarried parents. In re Petition of Purscell, 544N.W.2d 466, 468 (Iowa Ct. App. 1995).

(b) However, both parent’s must consent to a name change under the Name ChangeStatute, Chapter 674, unless the father’s name is not on the birth certificate. Section674.6 AThe legislature specifically limited the required consent to >parents as statedon the birth certificate.= In re Name Change of Reindl, 671 N.W.2d 466 (Iowa2003).

(c) Braunschweig v. Fahrenkrog, 773 N.W.2d, 888 (Iowa 2009). In an action tochallenge to the legitimacy of a child's name unilaterally chosen by one parent, thedecision is controlled by Iowa Code Chapter 598; and the Court must decide whatwould be in the child's best interests. Montgomery v. Wells, 708 N.W.2d 704, 708(Iowa Ct.App.2005); In re Name Change of Quirk, 504 N.W.2d 879, 882 (Iowa1993). However, if the child’s surname was or could have been an issue in anearlier proceeding, the doctrine of res judicata may require that the Chapter 674, theName Change Statute, which permits change only if both parents agree, will controlthe court’s decision. Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006).

-77-

c. Visitation

The specific visitation rights of visiting or visited parents, whether the parent is a joint legalcustodian or not, are somewhat confusing and unsettled. The Code Section 598.41(1) requires thatvisitation be established to assure "maximum continuing physical and emotional contact with bothparents." However, a substantial conflict in the cases exists due to the paradoxical task of reconcilingthe goal of maximum parental contact with the desire to avoid excessive disruption of the child's life.

(1) Cases Stressing Avoidance of Excessive Disruption

In the following cases, the court seems to be most concerned with the maintenance of astable environment for the child: In re Marriage of Miller, 390 N.W.2d 596 (Iowa 1986)(alternate weekend visitations, four weeks' visitation each summer and one week atChristmas). See also In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983)(alternating two-week intervals of summer visitation instead of four consecutive weekswould not be granted because such arrangement would be confusing and upsetting to thechildren); In re Marriage of Guyer, 238 N.W.2d 794, 797 (Iowa 1976) (visitation on everyweekend instead of alternating weekends found to be "unduly disruptive"); In re Marriageof Martens, 406 N.W.2d 819 (Iowa App. 1987) (visitation modified on appeal to terminatealternate weekend visitation on Sunday evening instead of Monday evening "...In order toallow preparation time for school and other weekday activities."); and in In re Marriage ofKurth, 438 N.W.2d 852 (Iowa App. 1989), (reduced the summer visitation from six weeksto three weeks).

.(a) Sections 598.41(1) and 598.1(6) do not require the Court to apportion at least one-

half of the available time to the non-custodial parent in order to meet the require-ment of maximum continuous physical and emotional contact. In re Marriage ofBunch, 460 N.W.2d 890, 892 (Iowa App. 1990).

(b) Liberal visitation rights are in the best interests of the children, but the primarycustodian is entitled to enjoy weekend time with the children. In re Marriage ofLacaeyse, 461 N.W.2d 475 (Iowa App. 1990).

(c) In In re Marriage of Hunt, 476 N.W.2d 99 (Iowa App. 1991), the Court found thatthe approach of middle school with increased school and friendship-related activitiesand increased travel time between the parties' homes made restricted visitationreasonable, equitable and in the child's best interests.

(d) Generally, courts will not impose conditions on a parent's visitation such asprohibiting use of alcohol and profanity or prohibiting contact with unrelated adults. In re Marriage of Rykhoek, 525 N.W.2d 1, 5 (Iowa App. 1994). See also, In reMarriage of Fite, 485 N.W.2d 662 (Iowa 1992).

(2) Cases Stressing Maximum Parental Contact

(a) The Court of Appeals has held that the non-physical custodian is entitled tomidweek overnight visitation with the child in addition to visitation on alternatingweekends in accordance with the statutory preference for maximum contact. In reMarriage of Toedter, 473 N.W.2d 233 (Iowa App. 1991).

(b) "Visitation should include not only weekend time, but time during the week whennot disruptive to allow the non-custodial parent the chance to become involved In

-78-

the child's day-to-day activity as well as weekend fun." In re Marriage of Ertmann,376 N.W.2d 918, 922 (Iowa App. 1985). See also In re Marriage of Muell, 408N.W.2d 774 (Iowa App. 1987).

(c) Generally, liberal visitation is in the child=s best interests. In re Marriage of Stepp,485 N.W.2d 846, 849 (Iowa App. 1992). It is important, however, not to impose ashared-type of physical care arrangement under the disguise of expansive visitationbecause it deprives children of the needed stability in their lives. See In re Marriageof Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996).

(3) Overnight Visitors

The Court of Appeals has stricken a trial Court's restriction on a mother's visitation rightswhich prohibited her from having adult males present in her living quarters "to whom shewas not married or related within the third degree of affinity or consanguinity" while theminor child was with her. The Appeals Court held the provision to be unduly restrictive. Inre Marriage of Ullerich, 367 N.W.2d 297 (Iowa App. 1985).

(4) Homosexuality

A seven-year marriage ended when the husband announced that he was homosexual. TheSupreme Court ruled that both Sections 598.21(4) and 598.41(1) show a legislativedetermination that a child needs close contact with both parents unless some compellingreason to the contrary is shown. In re Marriage of Walsh, 451 N.W.2d 492, 493 (Iowa 1990).The record showed that "...Michael was a good, loving and responsible father..." Michaeltestified that he would not expose the children to his private sex life.

(5) Custodial Parent Visits During Summer Visitation

Where the mother was granted four weeks of summer visitation, not necessarily consecutive,the Court provided that where the mother had visitation for more than fourteen consecutivedays, the father would be entitled to a weekend visit. In re Marriage of Manson, 503 N.W.2d427 (Iowa App. 1993). See also In re Marriage of Wiarda, 505 N.W.2d 506 (Iowa App.1993). However, though the Court encouraged the father to permit his daughter to visit hermother during the extended summer visit, it declined to order a visitation schedule. In reMarriage of Russell, 473 N.W.2d 244 (Iowa App. 1991).

(6) Control by Expert Improper.

In re Marriage of Brown, 778 N.W.2d 47 (Iowa Ct. App. 2009) and Iowa Code §598.41(providing the factors the court should considering in awarding custody and visitation rights)require that the obligation to modify a decree cannot be delegated to a counselor or any otherperson or entity because that person or entity has no jurisdiction to render such a decision. The legislature has granted to the court the responsibility to make an impartial andindependent determination as to what is in the best interests of the child, and this decisioncannot be controlled by the agreement or stipulation of the parties. See Walters v. Walters,673 N.W.2d 585, 592 (Neb. Ct. App. 2004).

-79-

(7) Parent=s Right to Pick Alternate Caretakers

Joint custody parents must be reasonable with each other. Reasonableness entails puttingaway petty differences and accepting that things will not be perfect. Reasonable behavioranticipates there will be times when each parent=s needs to designate alternate child careproviders. However, a joint custody parent may refuse to deliver the child to an irresponsi-ble child care provider and has the right to be notified in advance as to the identity of thealternate care giver. Petition of Holub, 584 N.W.2d 731 (Iowa App. 1998).

Iowa Code Section 598.41D permits a parent serving active duty in the military who hasbeen granted court-ordered visitation to file an application to temporarily assign his or hervisitation rights to a family member who has an established an important relationship withthe child. If necessary, proceedings will be expedited and conducted by electronic means.

(8) Visitation for Biological Father Unknown to Child

In Callender v. Skiles, 623 N.W.2d 852 (Iowa 2001), the Supreme Court remanded the casein 1999 to the trial court after ruling that the biological father had been unconstitutionallydenied his right to establish his paternity (see Paternity Rights section supra). The Courtapproved visitation which increased to two weekends per month after 3 months, but foundno precedent for a judge-ordered timeline for telling the child of her ancestry (beforekindergarten begins); and modified the decision to leave the decision to the mother, the solecustodial parent, as to when Samantha should be told of her parentage.

(9) Grandparent\Great-Grandparent Visitation

(a) The U.S. Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct.2054 (2000) , the Iowa Supreme Court=s Santi v. Santi, 633 N.W.2d 312 (Iowa2001), and subsequent decisions establish that the parents= interest in the care,custody, and control of their children is the oldest of the fundamental libertyinterests recognized by the law; and that the decisions concerning visitation of fitparents are unchallengeable unless the court finds the custodial parent is unfit. Seealso In re Marriage of Howard, 661 N.W.2d 183 (Iowa 2003); Lamberts v. Lillig,670 N.W.2d 129 (Iowa 2003); and Spiker v. Spiker, 708 N.W.2d 347 (Iowa 2006).

(b) Iowa Code Section 600C.1 permits grandparents and great-grandparents to petitionfor visitation rights only if the child’s parent to whom they are related is dead andcodifies and elaborates upon the limitations placed upon visitation by established bythe Supreme Courts.

(10) Other Third Party Visitation

The Supreme Court's decision in In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995)discussed in detail in the Custody section of this outline, established the Equitable ParentDoctrine In Iowa after previously rejecting the doctrine in the Ash and Halverson cases citedbelow. These cases were distinguished, not specifically overruled. However, the impact ofthe Gallagher case on the rights and responsibilities of non-parents will have to be definedin future cases.

(a) Former Cohabitant. A custodial parent holds veto power over visitation rights ofanyone except the other parent. In two recent cases, the Supreme Court rejected theefforts of men to gain the right to visit and support children where a parent-child

-80-

relationship had been established though blood tests proved they were not thebiological fathers. In each case the men asserted that the mother should beprevented from denying their parenthood through the doctrine of equitable estoppel. The courts ruled that the necessary false representations were not made and that"willful ignorance is not a good substitute for a lack of knowledge of the true facts." In re Marriage of Halverson, 521 N.W.2d 725 (Iowa 1994). See also In re Marriageof Freel, 448 N.W.2d 26 (Iowa 1989); Bruce v. Sarver, 522 N.W.2d 67 (Iowa 1994);and Petition of Ash, 507 N.W.2d 400 (Iowa 1993).

(b) Sibling Visitation. The custodial parents' veto power over visitation extends tosiblings. The Supreme Court has ruled that children have no common law orstatutory right to visitation with their siblings." Lihs by Lihs v. Lihs, 504 N.W.2d890 (Iowa 1993). However, Northland v. McNamara, 581 N.W.2d 210 (Iowa App.1998), without referring to any of the precedents in this area, the Court of Appealsgranted visitation (one weekend per month, plus two weeks in the summer) betweenthe child and his stepbrother in the home of his stepfather.

II. POST DECREE PROCEEDINGS

A. POST DECREE MOTIONS

1. Motion to Set Aside or Vacate Judgment.

a. In In re Marriage of Wagner, 604 N.W.2d 605 (Iowa 2000), the SupremeCourt ruled, based on its review of American common law, that Athevacation of the Decree places the parties in the status in which they werebefore the divorce ... the effect of vacating an Order is the same as thoughit had never existed. ... Under these principles, when a support award in afinal decree is vacated, a temporary award is automatically reinstated as ifthere had been no final decree, unless the court=s order vacating the supportaward shows otherwise.@

b. Iowa Rule of Civil Procedure 1.1012(2) [formerly Rule 252(b)] providesthat a final judgment may be vacated if irregularity or fraud was practicedin obtaining the judgment or order. AIrregularity@ ordinarily does not relateto the parties to the judgment but deals with an adverse ruling due to actionor inaction by the court or court personnel; AFraud@ covers the conduct ofa party who obtains a judgment. AProving fraud is a difficult task. Aplaintiff must prove several factors by clear and convincing evidenceincluding (1) misrepresentation or failure to disclose when under a legalduty to do so, (2) materiality, (3) scienter, (4) intent to deceive, (5)justifiable reliance, and (6) resulting injury or damage.@ In re Marriage ofCutler, 588 N.W.2d 425 (Iowa 1999) .

c. If due process has not been denied, proof of extrinsic fraud is necessary tovacate a judgment under Iowa R. Civ. P. 1.1013(1). AFraud is of two types:extrinsic and intrinsic. Extrinsic fraud is >some act or conduct of theprevailing party which has prevented a fair submission of the controversy=... In contrast, intrinsic fraud inheres in the judgment itself; it includes, forexample, false testimony and fraudulent exhibits. ... Fraud sufficient tovacate a judgment under Rule 1.1012 (formerly Rule 252(b)) must beextrinsic to the judgment.@ In re Adoption of B.J.H., 564 N.W.2d 387 at

-81-

392 (Iowa 1997). See also In re Marriage of Kinnard, 512 N.W.2d 821(Iowa App. 1993); In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa1999); and In re Marriage of Heneman, 396 N.W.2d 797, 800 (IowaCt.App.1986).

In re Marsh, No. 3-231/12-1573(Iowa App. 2013). On December 20, 2011, theclerk of court set a hearing for default judgment for January 12, 2012 because thecase had been on file for more than ninety days after service of process. Brandonhad not filed an appearance , but was given notice of the hearing. However, onJanuary 5, 2012, during order hour, Jasmine presented an to the district court anapplication for default judgment and obtained a default decree of dissolution ofmarriage without notifying the judge of the pending hearing. Rule 1.1013 providesthat the court may correct, vacate or modify a final judgment or order, or grant anew trial on any of severa; grounds, including “. . . Irregularity or fraud practicedin obtaining it." "Irregularity" is not defined in the rule, but the question for thecourt under this rule is whether the judgment was obtained following some actionor inaction of the court or court personnel in violation of a recognized rule,procedure, or court practice. See In re Marriage of Cutler, 588 N.W.2d 425, 429(Iowa 1999). When the decree was presented to the district court, the judge was"not given the facts other than the fact that there was no answer." Had the judgebeen informed of the default hearing set for January 12, the decree by default onJanuary 5. Entering judgment prior to a scheduled hearing was "inconsistent withthe court's design to bring matters to resolution by proper procedure."

d. In a case of first impression, the Supreme Court held that the ex-wife=s flight toavoid domestic abuse was an Aunavoidable casualty@ warranting the vacation of thedissolution of marriage decree. In re Marriage of Marconi, 584 N.W.2d 331 (Iowa2005).

2. Motion to Amend or Enlarge Decree.

In re Marriage of Oakland, 699 N.W.2d 260 (Iowa 2005). A Rule 1.904(2) motion filed aftera new judgment or decree has been entered by the court in response to a prior Rule 1.904(2)motion is permitted under the rule and extends the time for appeal.

3. Motion to Set Aside Default.

Iowa Rule of Civil Procedure 1.977 provides, “[o]n motion and for good cause ... the courtmay set aside a default or the judgment thereon, for mistake, inadvertence, surprise,excusable neglect or unavoidable casualty.” The court considers four factors: to determinewhether “excusable neglect” was proved: (1) whether the defaulting party actually intendedto defend; (2) whether the defaulting party asserted a claim or defense in good faith; (3) didthe defaulting party willfully ignore or defy the rules of procedure or was the default simplythe result of a mistake; and (4) relief should not depend on who made the mistake. Sheederv. Boyette, 764 N.W.2d 778, 780 (Iowa 2009) See Paige v. City of Chariton, 252 N.W.2d433, 437 (Iowa 1977)

-82-

B. APPEAL

1. Jurisdiction During Appeal

"'When an appeal is perfected, the trial court loses jurisdiction over the merits of thecontroversy. In re Marriage of Novak, 220 N.W.2d 592, 596 (Iowa 1974). The trial courtmay, enforce its judgment during the appeal unless a supersedeas bond is filed. Lutz v.Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980). Here...the trial court entered a new ordermodifying the dissolution decree after the appeal was taken ...The trial court's order is anullity because it...had lost jurisdiction.' In re Marriage of Russell, 479 N.W.2d 592, 596(Iowa App. 1991)" In re Marriage of Courtney, 483 N.W.2d 346 (Iowa App. 1992).

2. Jurisdiction After Appeal

a. The District Court retains jurisdiction after an appeal from its final judgment toenforce the appellate decision, but does not have the authority to revisit decidedifferently the issues concluded by the appeal. In re Marriage of Hoffman, 515N.W.2d 549 (Iowa App. 1994).

b. In In re Marriage of Davis, 608 N.W.2d 766 (Iowa 2000), the Supreme Court ruledthat Awhen, as here, an appellate court remands for a special purpose, the districtcourt upon such remand is limited to do the special thing authorized by the appellatecourt in its opinion and nothing else.

3. Support During Appeal

Appellate courts as well as trial courts have jurisdiction to grant temporary alimony or suitmoney while an appeal is pending, even if an appeal bond has stayed enforcementproceedings to collect support under the appealed district court ruling. However, unless aparty seeking temporary alimony pending appeal shows a need for such alimony, theopposing party should have the benefit of the supersedeas bond to stay enforcement of adecree for alimony. In re Marriage of Spiegel, 553 N.W.2d 309 (Iowa 1996).

4. Appellate Waiver Doctrine

Where a party, knowing the facts, voluntarily accepts the benefits or a substantial partthereof, accruing to him under a judgment, order, or decree, such acceptance operates as awaiver or release of errors, and estops him from afterward maintaining an appeal or writ oferror to review the judgment, order, or decree or deny the authority which granted it. Kettells v. Assurance Co., 644 N.W.2d 299, 300 (Iowa 2002); 4 C.J.S. Appeal & Error§193, at 267-68 (1993). However, when an amount accepted under a judgment or decree ispart of a sum admittedly due and does not cover the amount claimed, its acceptance does notalone constitute acquiescence in the provision of the judgment or decree under which theamount is awarded. In re Marriage of Abild, 243 N.W.2d 541, 543 (Iowa 1976).

5. No Plain Error Rule

Iowa courts have consistently refused to recognize a plain error rule; even issues ofconstitutional dimension must be preserved. State v. Yaw, 398 N.W.2d 803, 805 (Iowa1987). If a person believes the district court's decision was wrong or was inequitable, he orshe must bring these matters to the attention of the district court either before or afterjudgment is entered and secure a ruling in respect to the issues.

-83-

6. Attorney Fees on Appeal

In In re Marriage of Kurtt, 561 N.W.2d 385 (Iowa App. 1997), the Court of Appeals heldthat in determining whether to award appellate attorney fees, the court considers the needsof the party making the request, the ability of the other party to pay, and whether the partymaking the request was obligated to defend the decision of the trial court on appeal. Seealso In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App. 1987); and In re Marriage ofTitterington, 488 N.W.2d 176 (Iowa App. 1992).

7. Final Action

a. In a question of first impression in Iowa, the Court of Appeals ruled that the thirty-day period for the filing of a writ of certiorari begins on the date set for thesentencing in a contempt proceeding, not the date of the finding of contempt. This Rule will give district courts the ability to fashion remedies prior to sentencingwithout losing jurisdiction. Rater v. Dist. Court for Polk County, 548 N.W.2d 588(Iowa App. 1996).

b. “Final judgment is one that conclusively adjudicates all of the rights of the partiesand places the case beyond the power of the court to return the parties to theiroriginal positions.” In re Marriage of Welp, 596 N.W.2d 569 (Iowa 1999). See alsoIn re Marriage of Graziano, 573 N.W.2d 598 (Iowa 1998).

c. Temporary custody orders are not final judgments appealable as a matter of right, but rather are interlocutory orders from which permission to appeal must be obtainedfrom the Supreme Court. In re Marriage of Denly, 590 N.W.2d 48 (Iowa 1999). Inso ruling, the Supreme Court overruled In re Marriage of Swanson, 586 N.W.2d 527and several other cases with similar holdings.

C. CONTEMPT PROCEEDINGS

1. Statutory Provisions

Contempt proceedings to enforce any temporary order or final decree are authorized by IowaCode Sections 598.23, 665.5 and 236.8. Procedures are governed by Chapter 665.

a. Chapter 665 provides a comprehensive procedure for contempt proceedings. Section 665.4 permits punitive sanctions for past disobedience to court orders; andSection 665.5 permits coercive sanctions to encourage performance of affirmativeacts required by an order. In addition, both punitive and coercive sanctions can beimposed in the same proceeding. Amro v. Iowa District Court for Story County,429 N.W.2d 135 (Iowa 1988).

b. Section 598.23(1) limits the maximum punishment for punitive sanctions underSection 665.4 to 30-day jail terms, but the Court can impose more severe sanctionsunder Section 665.5 for coercive purposes.

c. Code Section 598.23(A) provides that if a person fails to make payments under asupport order or to provide medical support as ordered, the person may be cited andpunished by the Court for contempt. The Court may require performance ofcommunity service work, or the posting of a cash bond in an amount equivalent to

-84-

the current arrearages and an additional amount which is equivalent to at leasttwelve months future support obligations.

d. Punishment for contempt for converting property creates a debt, but the court is notprevented from punishment for contempt by Iowa Code Section 626.1 whichprohibits enforcement of a debt by contempt. Harris v. Iowa Dist. Court forCherokee County, 584 N.W.2d 562 (Iowa 1998) [former wife punished for sellingassets awarded to husband in decree].

2. Contempt Defenses

a. The laches defense to child support collection may only be used if the payor showsthat he was prejudiced by the delay. State ex rel. Holleman v. Stafford, 584N.W.2d 242, 245 (Iowa 1998). The waiver/estoppel by acquiescence defense maybe used when there is an implication that party intended to waive or abandon right.

b. In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa 1994) the Supreme Courtheld that the former wife was equitably estopped from collecting support judgmentbecause of oral agreement to forego payments. In rare, special circumstances,Courts should apply the doctrine of equitable estoppel to prevent collection of childsupport where equity clearly requires relief. The basic elements to be proven are: (1) a clear and definite oral agreement; (2) proof that Plaintiff acted to his detrimentin reliance thereon; and (3) a finding that the equities entitle Plaintiff to relief. Seealso In re Marriage of Yanda, 528 N.W.2d 642 (Iowa App. 1994).

c. Farrell v. Iowa District Court for Polk County, 747 N.W. 2d 789 (Iowa App. 2008). John did not pay his child support for two months because he wanted to get hisformer wife's attention on joint parenting issues. This type of self-help measure isnot a basis for avoiding a contempt citation. Christensen v. Iowa Dist. Ct., 578N.W.2d 675, 678 (Iowa 1998). Issues of child support and custody or visitation areindependent. Problems with one do not justify withholding of the other. See Stateex rel. Wagner v. Wagner, 480 N.W.2d 883, 885 (Iowa 1992).

d. In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013). When a partyclaims ineffective assistance of counsel, the ultimate concern is with the '"fundamen-tal fairness of the proceeding whose result is being challenged.'"State v. Risdal, 404N.W.2d 130, 131 (Iowa 1987) (quoting Strickland v. Washington, 466 U.S. 668,696 (1984)). The party claiming ineffective assistance of counsel must show (1)counsel's performance was deficient, and (2) actual prejudice resulted. Kellieclaimed that her attorney in a contempt action allowed her to incriminate herself onthe stand, without offering any defense or rationale for her actions. However, Kelliefreely admitted in her testimony she willfully violated the court order, feelingjustified in her actions. In addition, there was no prejudice because there wasample evidence of her contemptuous conduct in the record independent of hertestimony.

3. Right to Court-Appointed Attorney

An indigent cited for contempt is entitled to be represented by counsel in the contempthearing if there is a significant likelihood that the sentence will include incarceration if theindividual is found to be in contempt. In re Marriage of Bruns, 535 N.W.2d 157 (Iowa1995). See also McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982).

-85-

4. Burden and Degree of Proof

a. Only willful disobedience of a court order will justify a conviction for contempt. In thiscontext, a finding of willful disobedience requires evidence of conduct that is intentional anddeliberate and contrary to a known duty. Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa1980). In re Marriage of Schradle, 462 N.W.2d 705 (Iowa App. 1990).

(1) The test for determining an ability to pay is not merely whether the contempter ispresently working or has current funds or cash on hand, but whether he has anyproperty out of which payment can be made. Even though the withdrawal of thesemonies would have meant loss of his employee status with the State=s retirementfund, the payor=s personal finances cannot take priority over his obligations to hischildren. Christensen v. Iowa Dist. Court, 578 N.W.2d 675 (Iowa 1998). See alsoMcKinley v. Iowa District Court for Polk County, 542 N.W.2d 822, 825 (Iowa1996).

(2) Gimzo v. Iowa Dist. Court, 561 N.W.2d 833 (Iowa App. 1997). Since the payor wasnot present at the hearing because his employment took him away, the fact that hewas employed showed some ability to pay and establishes that some of the non-payment was willful. See also Rater v. Dist. Court for Polk County, 548 N.W.2d 588(Iowa App. 1996); and Matlock v. Weets, 531 N.W.2d 118 (Iowa 1995).

b. In a contempt proceeding, the payor alleged that the payee had agreed to defer collectionuntil civil litigation he was involved in was resolved. The Supreme Court held that thealleged agreement might not terminate the support obligation (In re Marriage of Sundholm,448 N.W.2d 688 (Iowa App. 1989). However, such an agreement may be considered indetermining whether nonpayment was willful. Huyser v. Iowa Dist. Court, 499 N.W.2d 1(Iowa 1993).

5. Punishment for Contempt

a. The Supreme Court held that contempt orders may be enforced against victims and non-parties who act (1) with knowledge of the order, and (2) in concert with the person to whomthe order is directed ... although we are sympathetic with Henley's plight as a victim, herwillful disregard for her own safety cannot deter us from upholding an enforceable order forher protection." Henley v. Iowa Dist. Court for Emmet County, 533 N.W.2d 199, 202-203(Iowa 1995).

b. Since the application for contempt did not give clear notice of the multiple accusations, theCourt of Appeals directed a new sentence to a term of incarceration of no more than 30 daysrather than a separate sentence for each alleged offense. In re Marriage of Bruns, 535N.W.2d 157 (Iowa 1995).

c. An Iowa court=s contempt power is inherent, but the power to punish may be limited bystatute. Iowa Code Section 665.4(2) allows the district court to impose a fine and/orimprisonment in a county jail not exceeding six months. The trial court did not have thepower to require an individual to serve his one-half hour jail time, hand-cuffed, in thecourtroom. Christensen v. Iowa Dist. Court, 578 N.W.2d 675 (Iowa 1998).

d. In Gizmo v Iowa Dist. Court, 561 N.W.2d 833 (Iowa App. 1997), the Court of Appeals heldthat Iowa Code Section 665.5 provides that a person may be imprisoned until he performs

-86-

an act only if he has the present power to perform the act.

e. Child Support Contempt Costs. Section 598.24 provides that the Court must tax thecost of the contempt action, including reasonable attorney fees, against the partyheld in contempt for failure to pay child support for at least six months or for failureto permit visitation. The taxing of costs for other acts of contempt is optional.

D. MODIFICATION OF DECREE

1. Personal Jurisdiction Over Parties

a. After the dissolution decree is entered, the district court retains subject matterjurisdiction to modify its decree. In re Marriage of Meyer, 285 N.W.2d 10, 11(Iowa 1979). The parties, however, are entitled to notice and a reasonableopportunity to appear and be heard before changes In the original decree are made. See In re Marriage of Garretson, 487 N.W.2d 366 (Iowa App. 1992); CatholicCharities of Archdiocese of Dubuque vs. Zalesky, 232 N.W.2d 539, 547 (Iowa1975).

b. Iowa Code Section 598.21(8) to provides that if support payments have beenassigned to the State for foster care or medical support, in addition to ADC, the Stateshall be considered a party to the support order. If notice is not given to the Statein a modification proceeding, the modification order is void.

2. Modification Venue

Niles v. Iowa District Court, 683 N.W.2d 539 (Iowa 2004). The parties were divorced inPolk County in 1992, but in 2003 when Randy filed a petition for modification in the PolkCounty District, he resided in Boone County while his former wife and child had resided inLinn County for over nine years. The Supreme Court overruled the Court of Appeals andheld that the county of the original decree continues to have continuing jurisdiction of thecase, unless one of the parties files a motion for change of venue under Iowa Code section598.25 to establish that a county other than the original county is a more appropriate forumfor the modification.

3. Substantial Change in Circumstances : A Warning

a. In In re Marriage of Vandergaast, 573 N.W.2d 601 (Iowa App. 1997), A[T]heSupreme Court has discouraged retention of jurisdiction to modify dissolutiondecrees without a showing of change of circumstances. In re Marriage of Schlenker,300 N.W.2d 164, 165-66 (Iowa 1981). AThe court, when granting a divorce, shouldnot make a mere temporary order for custody when this can be avoided. . . . AWefind in future cases that prior to entering any provision into a decree of dissolutionallowing for future review of child custody with the necessity of showing change incircumstances, the trial court must require a showing that the case is within theexception circumstances contemplated by the Supreme Court in Schlenker.@ Vandergaast at 603.

b. Modification is appropriate only if a material and substantial change in thecircumstances has occurred and if the change must was not contemplated by thecourt issuing the original decree. See In re Marriage of Sjulin, 431 N.W.2d 773, 776(Iowa 1988) and In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977).

-87-

4. Property Settlement Not Modifiable

a. The basic principle that property settlements are not subject to modification is wellestablished, and indirect efforts to change the terms of the decree will be resisted. The onlygrounds upon which the property settlement can ordinarily be modified are those found inIowa Rule of Civil Procedure 252, necessary to set aside or change any other judgment. Inre Marriage of Ruter, 564 N.W.2d 849 (Iowa App. 1997). See also In re Marriage of Knott,331 N.W.2d 135 (Iowa 1983).

b. In re Marriage of Martin, 641 N.W.2d 203 (Iowa App. 2001) The use of the term "alimony"to describe the nature of a financial obligation in a decree is not conclusive as to whether ornot the obligation is modifiable or is part of the property settlement. In re Marriage of VonGlan, 525 N.W.2d 427, 430 (Iowa Ct.App.1994). However, here the decree provided thatthe obligation would cease upon the death of either party, or upon [recipient's] remarriage,terms which indicated an alimony award.

5. Alimony Modification

a. Limited to Marital Lifestyle. Ordinarily, an alimony payee is not entitled to share in theeconomic good fortune of his or her spouse after the marriage, but is only entitled tomodifications to maintain a style of living comparable to that enjoyed during the marriage. In re Marriage of Schettler, 455 N.W.2d 686 (Iowa App. 1990).

b. Conversion of Rehabilitative to Permanent. In re Marriage of McCurnin, 681 N.W.2d 332(Iowa 2004). Iowa Code section 598.21(8) allows for a modification of an alimony award"when there is a substantial change in circumstances." See also In re Marriage of Wessels,542 N.W.2d 486 (Iowa 1995)[the wife=s psychological condition took a drastic downwardspiral due to marriage incident]; In re Marriage of Trickey, 589 N.W.2d 753 (Iowa App.1998)[extended rehabilitative alimony because self-support not achieved].

c. Impact of Inheritance. An inheritance or a gift received by the alimony recipient after thedissolution can be considered in assessing the need for alimony. In re Marriage of Halbach,506 N.W.2d 808 (Iowa App. 1993).

d. Effects of Bankruptcy. The property division and alimony should be considered together in evaluating their individual sufficiency. Bankruptcy attempts to provide the debtor witha Afresh start@ in life unhampered by pre-existing debt. Therefore, marriage propertysettlements are generally not recoverable by the spouse to whom the payments wereoriginally due. However, alimony modification may be appropriate after bankruptcy if itsconsequences caused a substantial and material change in circumstances not contemplatedby the trial court. In re Marriage of Trickey, 589 N.W.2d 753 (Iowa App. 1998).

e. Cohabitation. Cohabitation can cause changes in a former spouse=s financial conditionwhich justify modification or termination of alimony. In In re Marriage of Harvey, 466N.W.2d 916 (Iowa 1991), the Supreme Court ruled that cohabitation is established when the(1) an unrelated person of the opposite sex is living or residing in the dwelling house and (2)the parties are living together in the manner of husband and wife. The key element ofcohabitation is unrestricted access to the home.

f. Remarriage. The recipient spouse has the burden to show extraordinary circumstancesjustifying the continuation of the alimony payments after remarriage. In re Marriage ofShima, 360 N.W.2d 827, 828 (Iowa 1985). Recognized extraordinary circumstances

-88-

include: (1) the annulment or invalidity of the second marriage, (2) the inability of thesubsequent spouse to furnish support, (3) the death of the subsequent spouse, or (4) thedissolution of the subsequent marriage. Shima, 360 N.W.2d at 829. See also Johnson v.Johnson,781 N.W.2d (Iowa 2010).

g. Burden of Proof. In In re Marriage of Hansen, No. 2-500 /11-1249 (Iowa App. 2012), Marcay was granted twenty-four months of alimony in the amount of $800.00 per month. On July 2, 2010, only a few weeks before the expiration of the support period, Marcaysought modification of the decree. She argued that she had been unable to obtain full-timeemployment due to her mental health issues, as well as the downturn in the economy. Marcay's treating physician did not testify that Marcay’s mental condition was worse, only“different." She explained that Marcay's depression is more "day-to-day ", which interferedwith her ability to find employment. On the positive side, her paranoia had decreased. TheCourt rejected the extension of the alimony period. Such extensions must be granted onlyin rare situations, where the "later occurrences are so extreme in their nature as to render theinitial understanding grossly unfair and therefore subject to change." In re Marriage ofWessels, 542 N.W.2d 486, 489-90 (Iowa 1995). While Marcay continues to struggle withdepression, there is not such a change in Marcay's mental health that would "demand that theoriginal order cannot, in fairness and equity, continue to stand." and the Court also refusedto accept her argument that a general decline of the economy should warrant a modification.

In re Sisson, No. 3-066/12-1023 (Iowa App., 2013). The original decree required Travis topay to Alfronia spousal support of $1,500 per month for 18 months and $500 per month forthe next seventy-four months.. Two and half years later, Alfronia sought a modification ofthe spousal support because she had terminal blood cancer continuous treatment and adecrease in her earnings and earning capacity. Modification of the spousal supportprovisions of a decree is justified "only if there has been some material and substantialchange in circumstances of the parties, financially or otherwise, making it equitable thatother terms be imposed." In re Marriage of Van Doren, 474 N.W.2d 583, 586 (Iowa Ct. App.1991). At the time of the divorce the parties anticipated that Alfronia would be increasingher earnings ability to $40,000 per year through further education or experience in the workplace. Because of the onset of tremors and her illness, Alfronia dropped her educationalplans and her future earnings were expected to be no more than $20,000. Under thesecircumstances, the court decided to increase the alimony to $2100 per month until the deathof either party and required Travis to help defray a portion of Alfronia's uninsured medicalexpenses. See Iowa Code § 598.21C(1)(c) (2011) (providing for modifications if there are"changes in the medical expenses of a party") and In re Marriage of Wessels, 542 N.W.2d586.

6. Child Support Modification

a. Duty to Disclose Income

The father resisted an increase in child support because he said his income was actuallymuch higher at the time the Decree was entered than he had stated in his Financial Statementto his wife and the Trial Court. The Supreme Court ruled that the Court would use theamount shown on the original Financial Statement for its determination of substantialchange. "[The father] benefitted from [the mother's] lack of knowledge once. We will notallow him to benefit a second time." In re Marriage of Guyer, 522 N.W.2d 818 (Iowa 1994).

-89-

b. Redetermination of Paternity

Section 598.21(4A) permits the modification of a decree to redetermine paternity and cancelchild support, subject to certain conditions and limitations.

c. Temporary and Retroactive Modification

(1) Section 598.21(8) provides that A... a modification proceeding may be retroactivelymodified only from three months after the date the notice of the pending petition formodification is served on the opposing party. [and] ... any retroactive modificationwhich increases the amount of child support or any order for accrued support underthis paragraph shall include a periodic payment plan.@ In In re Marriage of Barker,600 N.W.2d 321 (Iowa 1999), the Court ruled that “although a support order maybe retroactively increased, it may not be retroactively decreased ... prior to the timethat modification is ordered.@ Barker, at 223-224. However, the Court further heldthat if the accrued support obligation is beyond the obligor=s ability to pay inaddition to current Guideline support, the Court may reduce the obligor’s futuresupport to an amount less that the Guidelines which the obligor can afford to payalong with a payment on the back amount, if the children will not suffer from lackof support.

In re Marriage of Doubek , No. 2-942 / 12-0628 (Iowa App. 2013). Darwin wasrequired to pay retroactive child support from July 11, 2011, the date of a juvenilecourt order which granted Barbara custody of their daughter after the daughtercommitted a deliquent act while in Darwin’s care. Barbara’s application formodification of custody and support commenced September 28; and in themodification order file in March 2012 required Darwin to reimburse Barbara for thechild support payments she made after July 2011. Iowa Code Section 598.21C(5)(2011) provides child support awards "subject to a modification proceeding may beretroactively modified only from three months after the date the notice of thepending petition for modification is served." See In re Marriage of Johnson, 781N.W.2d 553, 559 (Iowa 2010) . Therefore, the Court ruled that Darwin’s supportcould not begin until three months after service. December 28. In addition, Iowacase law provides "although a support order may be retroactively increased, it maynot be retroactively decreased." See In re Marriage of Barker, 600 N.W.2d 321, 323-24 (Iowa 1999) . Therefore, the Court cancelled Darwin's $3,232.00 obligation toreimburse child support payments made to him by Barbara while the child was inher home.

(2) "However, saying that a court may order higher support payments to be paid retroactivelyis not the same as saying that it must do so. Where the record is not sufficient to support afinding that the grounds for modification existed at the time of the filing of the modificationpetition, the order for increased support should not be payable retroactively." In re Marriageof Koepke, 483 N.W.2d 612 (Iowa App. 1992). See also, In re Marriage of Ober, 538N.W.2d 310 (Iowa App. 1995); and In re Marriage of Bircher, 535 N.W.2d 137 (Iowa App.1995).

(3) Section 598.21C(4) authorizes the trial court to temporarily modify a child support orderduring a modification proceeding after a temporary hearing. The statute applies to supportorders entered under any Iowa statute.

-90-

(4) In In re Marriage of Griffey, 629 N.W.2d 832 (Iowa 2001), the Supreme Court reaffirmedthe long-standing principle of Iowa law which prohibits modification of past-due supportpayments. See Newman v. Newman, 451 N.W.2d 843, 844-45 (Iowa 1990). A childsupport judgment was referred to Texas for collection, all payments were vested and notsubject to modification by an Iowa court. The court held that Texas could not enter an orderreducing the child support since an Iowa court could not do so.

d. Application of Guidelines to Modifications

(1) Trends

The Supreme Court has noted several principles regarding child support modification whichcan be gleaned from recent cases: (1) there must be a substantial and material change incircumstances occurring after the entry of the Decree; (2) there is a growing reluctance tomodify Decree; (3) not every change in circumstances is sufficient; (4) continuedenforcement of the original Decree would create a positive wrong or injustice because of thechanged condition; current inability to pay is less important than the long-range capacity toearn money; the change must be permanent or continuous; (5) the change in circumstancesmust not have been within the contemplation of the trial court when the last support orderwas entered; and (6) any voluntariness in diminished earning capacity is an impediment tomodification. In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998). See also In reMarriage of Maher, 596 N.W.2d 561 (Iowa 1999); State Ex. Rel. LeClere v. Jennings, 523N.W.2d 306, 309 (Iowa App. 1994); and In re Marriage of Vetternack, 334 N.W.2d 761(Iowa 1983).’

(2) Burden of Proof

The party seeking modification has the burden to prove that a substantial change incircumstances has occurred making it equitable and just that different terms be fixed. SeeIn re Marriage of Lee, 486 N.W.2d 302 (Iowa 1992).

(3) Determination of Substantial Change: The 10% Rule

Section 598.21(C)(2)(a) now provides that a substantial change in circumstances exists whenthe Court order for child support deviates by 10% or more from the amount which would bedue pursuant to the most current child support guidelines. In re Marriage of Nelson, 570N.W.2d 103 (Iowa 1997). See also In re Marriage of Wilson, 572 N.W.2d 155 (Iowa1997)[applies the 10% Rule to split custody cases.]; and In re Marriage of Bolick, 539N.W.2d 357 (Iowa 1995)[10% Rule does not apply in the discretionary range: whereincomes $10,000+].

(4) Changes in Net Worth Can Justify Departure from Guidelines

"Certain factors, including changes in net worth, can justify departure from the guidelines. See In re Marriage of Lalone, 468 N.W.2d 695, 697. [However], Michael as a farmer relieson his assets to assist him in producing income. There is no showing he has not accuratelyreported his income." Though Father's net worth had increased from $100,000 to $260,000,while Mother's assets had declined, the Court here found no justification to vary from theGuidelines. In re Marriage of Thede, 568 N.W.2d 59 (Iowa App. 1997).

-91-

(5) Stepparent's Assets and Income

In In re the Marriage of Shivers, 557 N.W.2d 532 (Iowa App. 1996) the Court held that theassets and income of the new spouses of divorced persons must be revealed and may beconsidered in certain circumstances in modification proceedings: AAlthough other familialobligations (and assets) do not automatically justify a departure from the Guidelines, theyare factors to be taken under consideration when determining whether the Guidelines shouldbe deviated from and whether the Court, in fixing support, has achieved justice between theparties.@ Shivers, at 534. See also In re Marriage of Gehl, 486 N.W.2d 284 (Iowa 1992); Inre Marriage of Dawson, 467 N.W.2d 271, 276 (Iowa 1991); State ex rel. Epps v. Epps, 473N.W.2d 56, 59 (Iowa 1991).

f. Dependent Exemptions

Dependent exemptions are the proper subject for modification since they are directly related to thematter of child support. The decree can be modified with respect to deductions even if they were notmentioned in the original decree and if the only change in circumstances established is the changeof IRS regulations. In re Marriage of Feustel, 467 N.W.2d 261 (Iowa 1991). See also In re Marriageof Hobben, 260 N.W.2d 401 (Iowa 1977); In re Marriage of Eglseseder, 448 N.W.2d 703 (IowaApp. 1989); In re Marriage of Rolek, 555 N.W.2d 675 (Iowa 1996).

g. Voluntary Income Reduction

(1) In In re Marriage of Rietz, 585 N.W.2d 226 (Iowa App. 1998), the Court of Appeals tooka new look a voluntariness: A. . . a primary factor to be considered in determining whethersupport obligations should be modified is whether the obligor=s reduction in income andearning capacity is the result of activity which, although voluntary, was done with animproper intent to deprive his or her dependents for support.@ See also In re Marriage ofWalters, 575 N.W.2d 739 (Iowa 1998) [conviction for embezzlement was based on voluntaryconduct, but not done with intent to avoid support obligation]; In re Marriage of McKenzie,709 N.W.2d 528, 533 (Iowa 2006) [a parent may not place selfish desires over the welfareof a child].

(2) Though not specifically overruled, cases which have refused modification when intentionalconduct reduced income without considering intent appear to be less important. See In reMarriage of Hester, 565 N.W.2d 351 (Iowa App. 1997); In re Marriage of Dawson, 467N.W.2d 271 (Iowa 1991); and In re Marriage of Flattery, 537 N.W.2d 801 (Iowa App. 1995).

h. Higher Education

(1) Even though the original decree did not specifically provide for the parents to pay forcollege, the Court has jurisdiction to modify child support to continue through the child'seducation pursuant to Iowa Code Section 598.1(2). In re Marriage of Holcomb, 457 N.W.2d619 (Iowa App. 1990).

(2) Chronic fatigue syndrome constituted a substantial change and the five to seven yearexpected course of the illness was long enough in a 57-year old man to constitute apermanent change which justified termination of the father's obligation to contribute to thechild's college costs. In re Marriage of Cooper, 524 N.W.2d 204 (Iowa App. 1994).

-92-

i. Modification Attorney Fees

The Court of Appeals ordered the child support payee to pay $600.00 towards the payor's$1,200.00 trial fee and $400.00 towards his $816.00 appellate fee and the appellate courtcosts where she knew or should have known that she had made a mistake in seeking amodification to increase the child support after discovery procedures early in the proceeding. In re Marriage of Roerig, 503 N.W.2d 620 (Iowa App. 1993).

j. Informal Modification.

In re Marriage of Huseman, No. 2-474/No. 12-0303 (Iowa App. 2012). Joseph andMichelle were granted shared physical care; and Joe was required to pay off-set childsupport for the parties' three children of $897 per month. However, Joe was employed out-of-state, could not care for the children one-half of the time, and began paying $1,400 permonth in September 2009. In 2010, he increased the payments to $1,600 per month. Michelle file a modification action in 2011 and was granted primary physical care and childsupport in the amount of $1,823 beginning on February 15, 2012. Joe argued that hispayments in excess of the court-ordered amounts since 2009 should be credited against hiscurrent child support obligation. The Court ruled that Joseph was not entitled to receive acredit for the child support payments made from 2009 through 2011. No credit should begiven for voluntary payments except "when the equities of the circumstances demand it andwhen allowing a credit will not work a hardship on the minor children" In re Marriage ofPals, 71,4 N.W.2d 644 (Iowa 2006). See also Griess v. Griess, 608 N.W.2d 217, 224 (Neb.2000). The additional payments were made in accordance with the changed living situationof the children and equity requires they be treated as voluntary payments because the partiesclearly intended that the extra child support was to intended as a de facto modification ofchild support to go along with their de facto modification from shared care to primaryphysical care with Michelle.

7. Custody Modification

a. Jurisdiction to Modify Out-of-State Orders

A significant case, In re Jorgensen, 623 N.W.2d 826 (Iowa 2001), the Supreme Court setsout the step by step procedure which is required to determine whether an Iowa Court hasjurisdiction to modify child custody decision made in another state. The first step in theJorgensen analysis to determine whether Iowa can modify an out-of-state custody order isto determine whether the federal Parental Kidnaping Prevention Act [PKPA: U.S.C. Section1738A(c)(2)] requires Iowa to give Full Faith and Credit to the out-of-state decision. If thePKPA does not require Iowa to enforce the out of state order, the second step is to determinewhether Iowa Code Chapter 598A, the Uniform Child Custody Jurisdiction and EnforcementAct [UCCJEA], requires Iowa to honor the out-of-state custody order.

b. Burden of Proof

(1) A heavy burden is placed on the party seeking modification of custody based on theprinciple that once custody is fixed, it should be disturbed only for the most cogentreasons. In re Marriage of Bergman, 466 N.W.2d 274 (Iowa App. 1990). In amodification of custody, the question is not which home is better, but whether themoving party can offer superior care. If both parties can equally minister to thechildren, custody should not change. The burden for the party petitioning for achange of custody is heavy. In re Marriage of Rosenfeld, 524 N.W.2d 212 (Iowa

-93-

App. 1994). See also In re Marriage of Rife, 529 N.W.2d 280 (Iowa 1995); In reMarriage of Gravatt, 371 N.W.2d 836, 838-40 (Iowa Ct.App.1985); In re Marriageof Jahnel, 506 N.W.2d 473, 474 (Iowa Ct.App.1993).

.(2) In In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000) The Court held that

Section 598.21(8A) which specifies that a substantial change in circumstances occurs if achild=s residence is relocated 150 miles or more does not change the burdens of proofapplicable to custody modification requests. If the non-custodial parent proves only asubstantial change in circumstances, Section 598.21(8A) explicitly contemplates only avisitation modification. AOur case law places greater importance on the stability of therelationship between children and their primary caregiver than on the physical setting of thechildren.@ Thielges at 236

c. Relocation

(1) The parent having physical care of the children must, as between the parties, have the finalsay concerning where their home will be. This authority is implicit in the right andresponsibility to provide the principle home for the children. In re Marriage of Westcott, 471N.W.2d 73 (Iowa App. 1991). See also In re Marriage of Frederici, 338 N.W.2d 156 (Iowa1983). But see In re Marriage of Kleist, 538 N.W.2d 273 (Iowa 1995).

(2) However, a change in residence involving a substantial distance can frustrate the importantunderlying goal that the children should be assured maximum continuing physical andemotional contact with both parents. A change of residence by the primary caretaker mayjustify a change of custody if the reasons for the move and the quality of the newenvironment do not outweigh the adverse impact of the move on the children. Dale v.Pearson, 555 N.W.2d 243 (Iowa App. 1996). See also In re Marriage of Scott, 457 N.W.2d29 (Iowa App. 1990); In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.App.2004).

(3) 150-Mile Rule. Subsection 598.21D provides that a substantial change in circumstances isestablished if a parent is to relocate the residence of a minor child 150 miles or more fromthe residence at the time custody was granted. Though a substantial change has occurred,the non-custodial parent must still show that he can render superior care. In re Marriage ofMayfield, 577 N.W.2d 872 (Iowa App. 1998). See also In re Marriage of Crotty, 584N.W.2d 714 (Iowa App. 1998).

(4) When the party with primary physical care plans to relocate, the burden is on the non-custodial parent to demonstrate how the move will detrimentally affect the child's bestinterests. In re Marriage of Montgomery, 521 N.W.2d 471 (Iowa App. 1994). See also Inre Marriage of Smith, 491 N.W.2d 538 (Iowa App. 1992); In re Marriage of Witzenburg, 489N.W.2d 34 (Iowa App. 1992).

d. Predetermined Definition of Substantial Change Discouraged

In their dissolution decree, the parties stipulated that if the primary caretaker moved out of the currentschool district, a substantial change in circumstances regarding modification of custody of the minorchildren would occur. We strongly disapprove of custody provisions, whether stipulated by theparties or mandated by the Court, that predetermine what future circumstances will warrant a futuremodification. A court should not try to predict the future for families, nor should it try to limit orcontrol their actions by such provisions. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App.2000).

-94-

e. Child's Preference/Problems

(1) When a child is of sufficient age, intelligence, and discretion to exercise an enlightenedjudgment, his or her wishes, though not controlling, may be considered by the Court, withother relevant factors, in determining child custody rights. However, a child’s preferenceis entitled to less weight in a modification action than would be given in an original custodyproceeding. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000) Here, theevidence showed that the 14-year old daughter could adjust to either custody arrangementand that her preference had more to do with her Iowa friends and school than with herparents. Given these circumstances, the court decided not to separate her from her siblingsand her current custodial parent. See also In re Marriage of Hunt, 476 N.W.2d 99 (IowaApp. 1991); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa App. 1998); and Inre Marriage of Jahnel, 506 N.W.2d 473 (Iowa App. 1993) [the child's expressed preferenceis diminished where there is evidence of manipulation or domination by the chosen parent].

(2) The custodial parent cannot be held responsible for defects in a child's personality: somecharacter traits develop despite the best efforts of the best parents. In re Marriage ofKimmerle, 447 N.W.2d 143 (Iowa App. 1989).

f. More Stable Lifestyle

Custody was granted to the father who petitioned to modify after he had remarried and establisheda stable home. The mother had drinking problems, had a series of live-in boyfriends, and movedoften. In re Marriage of Rierson, 537 N.W.2d 806 (Iowa App. 1995).

g. Character of Companion

If a parent seeks to establish a home with another adult, that adult's background and his or herrelationship with the children becomes a significant factor in a custody dispute. In re Marriage ofDecker, 666 N.W.2d 175, 179 (Iowa Ct. App. 2003). The companion will have an impact on thechildren's lives, and the type of relationship the parent has sought to establish and the manner inwhich he or she has established it is an indication of the parent's priorities.

h. Denial of Visitation/Contact

(1) Iowa courts do not tolerate hostility exhibited by one parent toward the other. See In reMarriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa App. 1994); see also In re Marriage ofUdelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App. 1991).

(2) Custody can be changed where the custodial parent substantially and unreasonably interfereswith the rights of the non-custodial parent to visit and contact the children. In re Marriageof Clifford, 515 N.W.2d 559 (Iowa App. 1994). See also In re Marriage of Wedemeyer, 475N.W.2d 657 (Iowa App. 1991).

(3) Section 598.23(2)(b) gives the Court the power to modify visitation to compensate with lostvisitation, to establish joint custody, and to transfer custody as punishment for contempt.Kirk v. Iowa Dist. Court, 508 N.W.2d 105 (Iowa App. 1993).

-95-

i. Breakdown of Joint Physical Care.

(1) In re Marriage of Barnhart, No. 386/12-2251 (Iowa App., 2013), Tami sought to modifythe joint physical care arrangement put in place by stipulation in the dissolution decree. Tamitestified that Bradley had promised not to put the children in the middle of their disputes, butthat he was calling her and and her husband, Jason, profane names to the children and thathe threatened to physically harm Jason and burn down Jason’s house. Bradley has also toldthe children they must love just one of their parents and choose between them. The Courtnoted that a joint physical care arrangement only works if the parties communicateeffectively about the children. In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). The parties must respect their former spouse and their children; recognize that cooperationand communication are important to the children's welfare; and tut that welfare ahead of theirown needs and petty differences. Melchiori,v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App.2002).44 N.W.2d at 368. A social worker, after meeting with the children two or threetimes, suggested to Tami to consider modifying to obtain primary physical care because thesocial worker observed "emotional abuse to the children perpetrated by their father. TheCourt concluded that evidence offered at trial showed that Bradley at this point is unable tosupport the children's relationship with Tami and approved primary care to her. See In reMarriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct. App. 1998); see also Iowa Code §598.41 (2011)

(2) In re Marriage of Keuter, No. 2-864 /11-1931 (Iowa App., 2013). The older child—a mature, fifteen-year-old compellingly testified that the every-other-day transfers werebecoming unworkable: "I feel like I'm living out of a suitcase, and I have houses that I goto, but I don't have a home." The children’s counselor testified that the kind of jointphysical care schedule these children had was very stressful on both children. The trial judgeruled the younger child, though less stressed , was entering her teen years and would likelybenefit from a less hectic schedule. The Court of Appeals confirmed the the mother, Kerry, showed that she provided better parenting. See Melchiori v. Kooi, 644 N.W.2d 365, 369(Iowa Ct. App 2002). Ted's parental failings were not severe, but he fell short in one respect:he refused to respond to or send e-mails concerning the children's welfare. Because theparents restricted their verbal communication with each other, it was incumbent upon themto proactively use other means to keep each other apprised of the children's day-to-daycircumstances. Kerry followed through with this obligation; Ted did not.

(3) In re Hinshaw, No. 3-416/12-1783 (Iowa App., 2013). Lori obtained a modification of thejoint physical care parenting plan which originally provided for two-day, two-day, three-dayexchanges of the twin girls. The new plan was alternate week parenting. She testified thatthe transfer of custody were "very disruptive" to the girls and transition days were especiallyemotional. She explained the short turnaround diminished the quality of interaction. Jamesargued there he wanted to minimize the time between visits and that there was no evidencethat the children were harmed by the original schedule. The court was convinced by Lori’stestimony that the twins were living out of a suitcase: bringing belongings back and forthand never really get comfortable in either home.The Court and parents mus focus on thegirls' best interest. In determining a physical care award, the paramount concern is thechildren's best interest. In re Marriage of Gensley, 777 N.W.2d 705, 714 (Iowa Ct. App.2009); see Iowa Code § 598.41. Our concern must not be based on perceived fairness to thespouses, but what is in the best interest of the children, seeking an environment most likelyto foster a long-term healthy environment, both physically and mentally. In re Marriage ofHansen, 733 N.W. at 695.

-96-

8. Visitation Modification

a. Appellate courts in this state have consistently held that modification of visitation rights shalloccur upon a showing of a significant (not substantial) change in circumstances since theprevious Order. The degree of change required for a modification of visitation rights ismuch less than the change required in a modification of custody. In re Marriage of Rykhoek,525 N.W.2d 1 (Iowa App. 1994).

(1) In re Leuer, No. 3-346/12-1663 (Iowa App., 2013). In 2008, after a year ofnegotiation, Sandra and Scott, worked out a stipulation intended to deal with allfuture parenting disputes. Sandra filed a petition to modify the visitation provisions. Sandra sought to gain more inaction between the child and his half sister; arguedthat Scott’s liberal visitation made regular extra-curricular activities difficult andthat, as custodial parent, she should have more control over her son's activities,education, and life as a whole. However, she provided little evidence that thecurrent schedule had an adverse impact on their son. The Court denied the petition. Even though a modification of a visitation schedule is less demanding than an actualchange in custody, there must be a change in circumstances to support themodification. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App.2000). The best interest of the child is always paramount when issues affectingchildren are involved. In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988). Primarily the liberal visitation is inconvenient to Sandra. Althoughthere may be situations where too much visitation with a noncustodial parentadversely affects the child, they are rare.

(2) In re Kilfoyle, No 3-380/12-1775 (Iowa App., 2013). At the time of the 2008modification, Brandon was on active duty serving abroad. His visitation withRaegan then required international travel through a major airport. He is nowstationed for the foreseeable future domestically. He sought to change the visitationprovisions, but the Court ruled that his eventual return to the United States was partof the 2008 plan: provisions were included for variation in his visitation rights in thefuture, depending on different possible distances from Raegan's home. Therefore,this does not represent a material change in circumstances unforeseen at the time ofthe decree. "To constitute a substantial change in circumstances, the changedconditions must be material and substantial, not trivial, more or less permanent orcontinuous, not temporary, and must be such as were not within the knowledge orcontemplation of the court when the decree was entered” In re Marriage of Pals,714 N.W.2d 644, 646 (Iowa 2006). This standard follows the criteria used inactions to modify child custody, except a much less extensive change in circum-stances is generally required in visitation cases." In re Marriage of Salmon, 519N.W.2d 94, 95-96 (Iowa Ct. App. 1994).

b. However, in Nicolou v. Clements, 516 N.W.2d 905 (Iowa App. 1994), the Court held thata parent cannot modify based on negative changes created by the Petitioner. The court ruledthat to allow the custodial parent to instill such anxieties and then use that as a justificationto block visitation would open a Pandora's Box of abuse which no court could tolerate.

c. Children’s best interest are generally served if they have maximum continuous physical andemotional contact with both of their parents. See Iowa Code Sections 598.1(1) and598.41(1). However, such contact can be assured by means other than a traditionalalternating-weekends visitation schedule. For example, Section 598.21(8A) states that whena court determines a long-distance relocation constitutes a substantial change in circum-

-97-

stances, the court can modify the custody order at issue by granting the non-relocatingparent. An extended visitation during summer visitations and school breaks and scheduledtelephone contact. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000). Here,the court granted the father eight weeks of summer visitation, half of the winter school break,alternate Thanksgiving and spring breaks, reasonable visitation whenever one parent visitsthe other’s home state, and liberal telephone and Internet communications.

d. In re Marriage of Richardson, No. 3-512/12-1461 (Iowa App., 2013). After the Missouridivorce, when Crystal moved to Dyersville from Missouri, she and Jamie agreed that shewould be responsible for all visitation transportation to and from Kansas City. She thenmarried, became full-time employed, and had two more children. She alleged, and theguardian ad litem agreed, that the previous schedule had become unworkable in light of theamount of time spent traveling and their son's desire to become more involved inextracurricular activities in his home community. The Court of Appeals approved themodification whihc requires the parties to meet in Des Moines, Iowa, the halfway point; andcreates more time with Jamie and less conflict over dates. The petitioner has a lesser burdento justify a modification of visitation provisions than a modification of custody. Nicolou v.Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994). Crystal had satisfied her obligationto show that there had been a change in circumstances since the last modification judgment,not a substantial change in circumstances; and she sustained the burden of showing that therequested change is in the best interest of the child. In re Marriage of Salmon, 519 N.W.2d94, 95-96 (Iowa Ct. App 1994).

III. ACTIONS TO COMPEL SUPPORT

A. PATERNITY PROCEEDINGS

1. Methods to Establish Paternity

There are three methods to establish of paternity. Paternity may be established (1)by court or administrative order, (2) admission by the alleged father in court uponconcurrence of the mother, or (3) by affidavit of paternity.

2. Limitations on Actions

a. Statute of Limitations. Section 600B.33 sets the time limitations forpaternity and support proceedings. An action to establish paternity andsupport under this chapter may be brought within one year after the childattains adulthood.

b. Estoppel and Laches. Markey v. Carney, 705 N.W.2d 13 (Iowa 2005). Adelay in bringing an action may be reasonable when lack of funds precludesa party from retaining a lawyer to pursue a claim. The Court held that todetermine retroactive child support, the proper analysis starts with theamount that would have been paid under the guidelines if there had been nodelay.

3. Proof

a. Burden of Proof. Paternity must be proven by a preponderance of theevidence, but the law presumes the legitimacy of children born during amarriage. The practical effect is to place the burden of proving nonpaternity

-98-

on the putative father. In re Marriage of Hopkins, 453 N.W.2d 232 (IowaApp. 1990). Where there was no scientific evidence and no proof of "lackof access" the husband failed to show nonpaternity by clear, strongevidence.

b. Blood and Genetic Tests. Section 600B.41 provides that a verified expert's report shall beadmitted at trial. The court testimony by the expert is not required. Results that showstatistical probability of paternity are admissible. A rebuttable presumption is triggered byresults of 95% or higher, and a motion or partial summary judgment will be granted unlessa written challenge has been filed within twenty days after the expert's report has been filedwith the Clerk of Court. The burden shifts to the alleged father to disprove paternity, andthe presumption can be rebutted only by clear and convincing evidence. If the results of theexpert's report are less than 95%, the Court can weigh the test results along with otherevidence.

c. Abandonment. Ward v. Robinson, No. 3-153/12-1518 (Iowa App., 2013). Mary BethRobinson and Emory Ward had a child in 2005. In 2011, Ward filed a petition to establishpaternity, and Mary Beth filed an action to terminate Ward's parental rights on the groundthat he abandoned the child. Ward lived in California and Mary Beth Robinson lived inTexas, and then Iowa. He visited the child four times in 2007, five times in 2008, three timesin 2009, and twice in 2010. The parents' relationship deteriorated in 2011. Ward also gaveMary Beth cash to assist with the child's support. She had received a total of $17,400 involuntary payments from Ward, plus gifts and cards for the child. Termination of parentalrights due to the abandonment of a minor child under Iowa Code § 600A.2(19) requires thata parent be shown to have rejected the duties imposed by the parent-child relationship, . . .which may be evinced by the person, while being able to do so, making no provision ormaking only a marginal effort to provide for the support of the child or to communicate withthe child. The Court refused to find that Ward had abandoned the child: He did not "reject[] the duties imposed by the parent-child relationship. He visited the child as much as hecould in light of the distance and expense, and he provided monetary contributions wheneverhe was able.

4. Right of Putative Father to Establish Paternity

a. The Supreme Court found in Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999) that the DueProcess Clause of the Iowa Constitution makes Iowa Code Section 600B.41A unconstitu-tional to the extent it denied a putative father standing to prove his fatherhood: That right,however, like other constitutional rights, can be waived, and this may be the thresholdquestion to consider before addressing paternity. If the challenge is not a serious and timelyexpression of a meaningful desire to establish parenting responsibility, it may be lost.

b. Huisman v Miedema, 644 NW 2d 321 (Iowa 2002) In In re B.G.C., 496 N.W.2d 239 (1992). Here, the Court found that the biological father had waived his right to challenge anestablished father's paternity because for more than seven years, the biological father letanother man raise a child that he knew was possibly his own because it served his need tokeep his affair with the child's mother a secret.

5. Setting Aside Paternity Order

a. Section 598.21(4A) provides that redeterminations of paternity may be considered if all ofthe statutory requirements are met. The modification of the paternity and child supportjudgment can be prospective only and cannot eliminate accrued or delinquent support.

-99-

b. Iowa Code Section 600B.41A permits a father whose paternity has been legallyestablished to overcome that legal presumption when genetic testing indicates he isnot the biological father. If genetic test results show that the established father is notthe biological father, the established father’s rights and responsibilities areterminated unless the established father requests that paternity be preserved and thecourt finds that this is in the child’s best interests. The statute cancels the result of Dye v. Geiger, 554 N.W.2d 538 (Iowa 1996) which continued the obligations of theestablished father after his paternity was disproved.

c. The legislature has explicitly made the appointment of a guardian ad litem acondition precedent to a finding that paternity should be overcome. See Iowa Code§600B.41A(3)(d). This requirement is one of six statutory conditions to overcomingthe paternity that "must be satisfied by the petitioner." Dye v. Geiger, 554 N.W.2dat 539. The guardian ad litem’s role assures that the biological father of the childis correctly identified, and that the appropriate individual is either established ordisestablished as a parent of the child. This assures the child not only a right tosupport from her biological parent, but also her right to inherit from, and receiveother economic benefits upon, his death.

6. Attorney Fees in Paternity Proceedings.

Section 600B.26 provides for the award of attorney fees to the prevailing party in actions todetermine custody and visitation under the chapter or to modify a paternity custody,visitation, or support order. Previously, the statute only permitted fee awards in actions toestablish paternity.

7. False Allegation of Paternity: Actionable Fraud

Dier v. Peters, 815 NW2d 1 (Iowa, 2012). Joseph Dier made voluntary contributions toCassandra Peters based on her alleged fraudulent representation that he was the father of herchild. Dier brought a common law action for fraud, seeking as damages for the money hepaid after he learned that he was not the father. The Supreme Court noted that Iowa courtshave held that a parents cannot obtain retroactive relief from court-ordered child supportafter paternity is disproved. See State ex rel. Baumgartner v. Wilcox, 532 N.W.2d 774, 776-77 (Iowa 1995). However, the Court held that Wilcox does not control this case becauseDier's cause of action was based on the concepts of traditional fraud law: (1) [the] defendantmade a representation to the plaintiff, (2) the representation was false, (3) the representationwas material, (4) the defendant knew the representation was false, (5) the defendant intendedto deceive the plaintiff, (6) the plaintiff acted in [justifiable] reliance on the truth of therepresentation , and (7) the representation was a proximate cause of [the] plaintiff's damages. See Spreitzer v. Hawkeye State Bank, 779 N.W.2d; Rosen v. Bd. of Med. Exam'rs, 539N.W.2d 345, 350 (Iowa 1995).

B. UNIFORM INTERSTATE FAMILY SUPPORT ACT

1. Uniform Support of Dependents Law Replaced

a. Chapter 252K, the Uniform Interstate Family Support Act (UIFSA), simplifies theprocess of child support enforcement and modification and reduces confusionsurrounding the multiplicity of orders for child support growing out of the divorceprocess in our increasingly mobile society.

-100-

b. The basic approach of UIFSA is summarized by the phrase: One Order, One Place,One Time”: Section 252K.205 provides that an order, once entered, is the only orderfor child support that may be enforced unless the obligor, individual obligee, and thechild have all gone to another state. If the order is modified by another state, thenthat order becomes the “One Order.” The parties can confer jurisdiction on anotherstate by mutual consent.

2. Statute of Limitations

The time for bringing a Chapter 252A action for a child was extended by operation ofSection 614.8 which provides that minors "shall have one year from and after termination"of their minority to commence such actions. Stearns v. Kean, 303 N.W. 2d 408, 413 (Iowa1981).

3. Retroactive Support

Relying upon The Code sections 252A.4(2) and 252A.5(5) and the rationale of Brown v.Brown, 269 N.W.2d 819 (Iowa 1978) the Court has approved an award of past child support,retroactively, in addition to current support. Foreman v. Wilcox, 305 N.W.2d 703 (Iowa1981). See also, State ex. rel Schaaf v. Jones, 515 N.W.2d 568 (Iowa App. 1994). See also,State Dept. of Human Services v. Burge, 503 N.W.2d 413 (Iowa 1993).

4. Both Parents are Liable

a. Section 252A.3(2) provides that both parents have obligations to support theirchildren, not necessarily equally. In State of S.D. v. Riemenschneider, 462 N.W.2d686 (Iowa App. 1990).

b. In actions brought by the state for reimbursement for public assistance, the state isentitled to recover in its own right without regard to terms of court orders betweenthe parents. State Ex. Rel. Heidick v. Balch, 533 N.W.2d 209 (Iowa 1995).

c. Section 252C.2(2) prevents a support debt from accruing against a responsibleperson for the period during which that person receives public assistance. Therefore, though the AFDC father had a support obligation accruing while livingwith his wife and children, the Department of Human Services is precluded fromcollecting the assigned support. Hundt v. Iowa Dept. of Human Services, 545N.W.2d 306 (Iowa 1996).

5. Enforcement Quashed/Denial of Child Contact

a. "The principle purpose of the uniform support laws is to simplify and expedite theinterstate enforcement of child support awards...the object of the act would bedestroyed if litigants could use it as a vehicle for litigating other divorce-relatedissues Beneveneti v. Beneveneti, 185 N.W.2d 219, 222 (Iowa 1971)" State ex rel.Wagner v. Wagner, 480 N.W.2d 883 (Iowa 1992). However, in Wagner, theSupreme Court quashed the efforts of Florida authorities to use mandatory incomewithholding procedures against a father who had not seen his children for more thansix years because the mother was hiding.

b. Section 252D.1(2) permits the quashing, modification, or termination of an Orderfor mandatory income withholding if the support delinquency has been paid in full

-101-

or the amount to be withheld exceeds the amount permitted by the federal wagegarnishment statute or upon termination of the child support obligation. Where thepayor seeks relief because his income has changed, he should file a Petition forModification, not a Motion to Quash the withholding Order. Hammond v. Reed,508 N.W.2d 110 (Iowa App. 1993).

IV. JUVENILE LAW: DELINQUENCY: CONSENT DECREE

State v. Iowa Dist. Court for Warren Cnty. No. 11-2031(Iowa 2013). The juvenile court issueda consent decree withholding the delinquency adjudication of fifteen-year-old J.W.R. who hadbeencharged with committing acts of incest upon his 12-year-old sister. The court placed J.W.R. inthe legal custody of juvenile court services, with the Department of Human Services as paymentagent, for purposes of placement in a residential facility. The Supreme Court reversed the court’saction, holding that the legislature did not grant authority to juvenile courts in Iowa Code 232.46 toauthorize a juvenile court to change temporary custody, send a child to a residential facility, andrequire State payment. Instead, §232.46 is a less restrictive alternative, analogous to the suspendedjudgment, whereby a child can remain with his parent or parents under supervision, restrictions, orrestitutionary obligations without being adjudicated delinquent. J.W.R. could be placed in the groupfoster home under §232.52(2)(d) following an adjudication of delinquency. An even betteralternative would be to avoid the adjudication of delinquency, to find him to be a Child in Need ofAssistance under §232.2(6)(l). A CINA proceeding would allow a lot more flexibility in treating theneeds of this entire family.

-102-

Drafting Settlement Agreements & QDROS That You and The Plan Administrator Won't Regret

9:00 a.m.-10:00 a.m.

Presented byWendy Drefahl

WFA Econometrics CorporationS77 W18512 Janesville Road

Muskego, WI 53150Phone: 262-679-1980

.



WFA ECONOMETRICS CORPORATION S77 W18512 JANESVILLE ROAD MUSKEGO, WISCONSIN 53150

Telephone: (262) 679-1980 Toll-Free: 1-877-421-8080 Facsimile: (262) 679-9780

www.wfa-econ.com

IOWA STATE BAR ASSOCIATION

October 25, 2013

DIVIDING RETIREMENT BENEFITS:

DRAFTING SETTLEMENT AGREEMENTS & QDROS

THAT YOU AND THE PLAN ADMINISTRATOR WON’T REGRET

I. Types of Plans a. Defined Benefit b. Defined Contribution c. IRAs

II. Defining the term “Marital Portion” for Defined Contribution Plans a. When not to use the “Benson Formula”

III. Treatment of loans when dividing Defined Contribution Plans a. Responsibility from the perspectives of the Plan and the Court

IV. Dividing non-vested funds in Defined Contribution Plans V. Define the term “Marital Portion” for Defined Benefit Plans

a. Present values are inapplicable for QDROs b. Contributions are not indicative of amounts payable

VI. Getting “retroactive” payments on a pension in pay status VII. “Bells and Whistles” VIII. Qualified pre-retirement survivor annuity (“QPSA”) benefits IX. IPERS is almost always a challenge

a. Contributions b. Dividing as of the date of divorce c. Survivor Benefits d. Alternate Payee rights

X. A QDRO is NOT required to divide an IRA XI. Child Support QDROs

a. Alternate Payee identification b. Tax withholding concerns

1

WFA ECONOMETRICS CORPORATION S77 W18512 JANESVILLE ROAD MUSKEGO, WISCONSIN 53150

Telephone: (262) 679-1980 Toll-Free: 1-877-421-8080 Facsimile: (262) 679-9780

www.wfa-econ.com

IOWA STATE BAR ASSOCIATION

October 25, 2013

DIVIDING RETIREMENT BENEFITS:

DRAFTING SETTLEMENT AGREEMENTS & QDROS

THAT YOU AND THE PLAN ADMINISTRATOR WON’T REGRET

****************************************

Define the term “Marital Portion” for Defined Contribution Plans. This term is typically

not defined and differing interpretations can lead to different amounts transferred.

EXAMPLE #1 (POTENTIALLY PROBLEMATIC):

The marital portion of the Husband’s 401(k) plan will be divided equally.

EXAMPLE #1 (BETTER):

The entire balance of the Husband’s 401(k) was earned during the marriage. Therefore,

the value of the account as of March 31, 2013 will be divided equally.

OR

The Husband has a 401(k) plan that is valued at $876,543.00. The parties agree that the

marital portion of the Husband’s 401(k) account is $123,456.00 which will be divided

equally with the Wife receiving $61,728.00 as of March 31, 2013.

2

Do not use the “Benson Formula” to divide Defined Contribution Plans. A marriage

coverture fraction is a measurement of time, not dollars.


The Husband’s 401(k) plan will be divided equally using the Benson formula.


The value of the Husband’s account within the Subaru 401(k) Savings Plan is valued at

$876,543.00. The parties agree that the marital portion of this account is $123,456.00

which will be divided equally with the Wife receiving $61,728.00 as of March 31, 2013.

****************************************

Define the treatment of loans when dividing Defined Contribution Plans. It is better to

agree up front as to wither or not the loan was taken for marital or non-marital purposes.


The Wife’s 401(k) plan will be divided equally.


The Wife’s account within the United Air Lines Flight Attendant 401(k) Plan will be

divided equally. The division of this account is intended to apply to the balance in the

account as of March 31, 2013, net of any outstanding loans.

3

Define the treatment of non-vested funds when dividing Defined Contribution Plans. If

the employee is terminated, then only the vested portion should be divided. But if the

employee is a short time away from becoming vested, it is appropriate to secure the

marital funds for the non-participant spouse.


The Wife’s 401(k) plan will be divided equally.


Only the vested portion of the Wife’s account within the United Air Lines Flight

Attendant 401(k) Plan will be divided equally.

OR

Without regard for any lack of vesting, the total value of the Wife’s account within the

United Air Lines Flight Attendant 401(k) Plan will be divided equally and paid from

vested funds.

****************************************

Define the term “Marital Portion” for Defined Benefit Plans. When using the Benson

Formula, it does not “end” on the date of divorce.


The marital portion of the Husband’s pension will be divided equally as of the date of the

Judgment for Dissolution of Marriage.


The marital portion of the Husband’s benefits under the John Deere Pension Plan for

Salaried Employees will be divided equally using the Benson Formula.

4

Avoid citing present values when dividing defined benefit plans via QDRO. Present

values are intended for immediate offset or buy-out purposes and reference to the same

can be misleading when dividing via QDRO.


The present value of the Husband’s pension is equal to $345,678.00 and Wife shall

receive half of said value.


The marital portion of the Husband’s benefits under the John Deere Pension Plan for

Salaried Employees will be divided equally using the Benson Formula.

****************************************

Recognize that contributions do not equal the value of a defined benefit plan. Many a

former spouse has been denied the true value of her share as a result of this

misconception.


The Husband’s carpenters pension has contributions totaling $80,000.00 and Wife shall

receive $40,000.00.


The marital portion of the Husband’s benefits under the North Central States Regional

Council of Carpenters Pension Plan will be divided equally using the Benson Formula.

5

A Plan Administrator cannot pay retroactive payments on a pension that is already in pay

status. But it can pay additional amounts to compensate the Wife for what she should

have been getting.


The QDRO will provide the Wife with retroactive payments on the Husband’s pension

since the date of his retirement.


The QDRO will provide the Wife with “double” payments on the Husband’s pension for

the number of months that the Husband has been retired, at which time her award will be

reduced to that which she is otherwise entitled.

****************************************

While it might seem to go without saying, it is better to clarity the intent to share

proportionately in all “bells and whistles” that a plan may have to offer. Saying nothing

in the MSA could otherwise be interpreted as a lack of entitlement.



The Wife shall be entitled to a separate interest under the Plan and also be assigned a

proportionate share of any cost of living adjustments, post-retirement increases and early

retirement subsidies, if any, which is consistent with assigning the marital portion.

6

Sometimes opposing counsel gets funny about including required qualified pre-retirement

survivor annuity (“QPSA”) benefits. While they are usually not required to secure a

separate interest, sometimes they are. To that extent, they are in lieu of a pension and

should not exceed more than what is otherwise payable.



Only to the extent they are needed to secure her awarded share in the event of Husband’s

pre-retirement death, Wife shall receive qualified pre-retirement survivor annuity

benefits.

****************************************

IPERS is almost always a challenge. Do not mistake contributions or refundable amounts

for the value of the plan.


The Husband’s IPERS pension has a value of $80,000.00 and Wife shall receive

$40,000.00.


The marital portion of the Husband’s benefits under IPERS will be divided equally using

the Benson Formula.

7

IPERS does not allow a QDRO to divide benefits “as of the date of divorce”. The

benefits are divided as of the date they are paid to the retiree.


The Husband’s pension will be equally divided as of the date of the Judgment for

Dissolution of Marriage.


The marital portion of the Husband’s benefits under IPERS will be divided equally using

the Benson Formula.

****************************************

** NEW ** To the extent benefits are to continue to the former spouse after the death of

the member, IPERS requires that the QDRO specify the percentage of the total benefit

that will be paid at such time. The restrictions are very unaccommodating.


Wife shall receive survivor benefits from Husband’s IPERS.


Wife shall receive a _________% joint and survivor death benefit under Option 4.*

* 25%, 50%, 75% or 100%

OR

To secure the Wife’s marital interest in the Husband’s pension, a life insurance policy of

$________ shall be maintained……

8

IPERS is not an ERISA plan and will not allow the alternate payee to receive benefits in

the form of his/her choice, nor will they permit the alternate payee to elect to receive

benefits on his/her own at the member attainment of the earliest retirement age.

Language to that effect will only cause frustration and disappointment in the future.


Wife shall have the right to elect any form of benefit at the earliest retirement age of the

Husband.


****************************************

A QDRO is NOT required to divide an IRA. The Judgment, as long as it clearly specifies

the IRA, along with necessary letters of instruction (from the account holder) and

acceptance (from the recipient spouse) are usually sufficient to make the transfer.


Husband’s IRA shall be divided by QDRO.


Husband’s IRA account ending in 9742 that is held at Charles Schwab shall be equally

divided as of March 31, 2013.

OR

Wife shall receive $50,000.00 from Husband’s IRA account ending in 9742 that is held at

Charles Schwab.

9

Get what you expect from a Child Support QDRO (and not something less). Make sure

you have the proper individual designated as the alternate payee. Also do not let tax

withholding compromise the amount that is ultimately paid to the child.

EXAMPLE #16 (PROBLEMATIC):

Wife shall receive $10,000.00 from Husband’s 401(k) plan via QDRO for past due child

support.


Child shall receive an amount from Husband’s 401(k) plan via QDRO, which when after

being reduced for any mandatory and/or voluntary tax withholding will yield $10,000.00.

Disestablishment of Paternity

10:15 a.m.-11:00 a.m.

Presented byJoseph Pavelich Sharon MellonMellon & Spies Mellon & Spies312 E. College Street 312 E. College StreetSuite 216 Suite 216Iowa City, Iowa 52240 Iowa City, Iowa 52240Phone: 319-337-4193 Phone: 319-337-4193



1

“No, I didn’t say we’re pregnant, I said I’m pregnant.”

An Overview of the Statutes, Cases and Procedure Relevant for

Disestablishment of Paternity

The Basics:

Disestablishment is brought before the court by a “party,” either mother or established father,

or putative father, or child.

Brought in front of the court through petition, which must include information outlined

in §600B.41A.

Can bring issue as part of any case in which child support or medical support may be

ordered.

Jurisdiction Limitation: Paternity determined by judicial or administrative order pursuant to

another jurisdiction cannot be brought in Iowa. (§598.21E(1)(b)).

Genetic testing is best practice, and is often required by District Court.

Section 598.21E(1)(c) allows parties to a dissolution to escape the procedures and

requirements of 600B.41A, but disestablishment under this section “does not bar

subsequent actions to establish paternity.” §598.21E(2).

GAL for the child must be appointed, whether seeking disestablishment under §598.21E or

§600B.41A.

Fees for testing, G.A.L., and all court costs are to be borne by the party bringing the action.

The Complications:

Best interest consideration is only valid in limited scenarios (§600B.41A(6)), and is one of three

conditions necessary to allow court to dismiss the petition, leaving established paternity intact.

Established father must also agree to preserve established paternity, and biological

father must either agree or have his rights terminated.

Res judicata does apply, unless initial determination did not include biological tests.

2

Statutes:

Establishing Paternity: 144.13. Birth certificates 2. If the mother was married at the time of conception, birth, or at any time during the period

between conception and birth, the name of the husband shall be entered on the certificate as the father of the child unless paternity has been determined otherwise by a court of competent jurisdiction, in which case the name of the father as determined by the court shall be entered by the department.

598.31. Children—legitimacy

Children born to the parties, or to the wife, in a marriage relationship which may be terminated or

annulled pursuant to the provisions of this chapter shall be legitimate as to both parties, unless the

court shall decree otherwise according to the proof

600B.7. Proceedings to establish paternity

Proceedings to establish paternity and to compel support by the father may be brought in accordance with the provisions of this chapter. They shall not be exclusive of other proceedings that may be available on principles of law and equity. 600B.8. Who may institute proceedings The proceedings may be brought by the mother, or other interested person, or if the child is or is likely to be a public charge, by the authorities charged with its support. After the death of the mother or in case of her disability, it may also be brought by the child acting through its guardian or next friend.

3

Disestablishing Paternity: 598.21E. Contesting paternity to challenge child support order 1. If, during an action initiated under this chapter or any other chapter in which a child or medical

support obligation may be established based upon a prior determination of paternity, a party wishes to contest the paternity of the child or children involved, all of the following apply: a. (1) If the prior determination of paternity is based on an affidavit of paternity filed

pursuant to section 252A.3A, or a court or administrative order entered in this state, or by operation of law when the mother and established father are or were married to each other, the provisions of section 600B.41A apply.

(2) If following the proceedings under section 600B.41A the court determines that the prior determination of paternity should not be overcome, and that the established father has a duty to provide support, the court shall enter an order establishing the monthly child support payment and the amount of the support debt accrued and accruing pursuant to section 598.21B, or the medical support obligation pursuant to chapter 252E, or both.

b. If a determination of paternity is based on an administrative or court order or other means pursuant to the laws of a foreign jurisdiction, any action to overcome the prior determination of paternity shall be filed in that jurisdiction. Unless a stay of the action initiated in this state to establish child or medical support is requested and granted by the court, pending a resolution of the contested paternity issue by the foreign jurisdiction, the action shall proceed.

c. Notwithstanding paragraph “a”, in a pending dissolution action under this chapter, a prior determination of paternity by operation of law through the marriage of the established father and mother of the child may be overcome under this chapter if the established father and mother of the child file a written statement with the court that both parties agree that the established father is not the biological father of the child.

2. If the court overcomes a prior determination of paternity, the previously established father

shall be relieved of support obligations as specified in section 600B.41A, subsection 4. In any action to overcome paternity other than through a pending dissolution action, the provisions of section 600B.41A apply. Overcoming paternity under subsection 1, paragraph “c”, does not bar subsequent actions to establish paternity. A subsequent action to establish paternity against the previously established father is not barred if it is subsequently determined that the written statement attesting that the established father is not the biological father of the child may have been submitted erroneously, and that the person previously determined not to be the child's father during the dissolution action may actually be the child's biological father.

3. If an action to overcome paternity is brought pursuant to subsection 1, paragraph “c”, the court

shall appoint a guardian ad litem for the child for the pendency of the proceedings.

4

600B.41A. Actions to overcome paternity‐‐applicability‐‐conditions 1. Paternity which is legally established may be overcome as provided in this section if subsequent

blood or genetic testing indicates that the previously established father of a child is not the biological father of the child. Unless otherwise provided in this section, this section applies to the overcoming of paternity which has been established according to any of the means provided in section 252A.3, subsection 10, by operation of law when the established father and the mother of the child are or were married to each other, or as determined by a court of this state under any other applicable chapter.

2. This section does not apply to any of the following:

a. A paternity determination made in or by a foreign jurisdiction or a paternity determination which has been made in or by a foreign jurisdiction and registered in this state in accordance with section 252A.18 or chapter 252K.

b. A paternity determination based upon a court or administrative order if the order was entered based upon blood or genetic test results which demonstrate that the alleged father was not excluded and that the probability of the alleged father's paternity was ninety‐five percent or higher, unless the tests were conducted prior to July 1, 1992.

3. Establishment of paternity may be overcome under this section if all of the following conditions

are met: a. The action to overcome paternity is filed with the court prior to the child reaching

majority. (1) A petition to overcome paternity may be filed only by the mother of the child,

the established father of the child, the child, or the legal representative of any of these parties.

(2) If paternity was established by court or administrative order, a petition to overcome paternity shall be filed in the county in which the order is filed.

(3) In all other determinations of paternity, a petition to overcome paternity shall be filed in an appropriate county in accordance with the rules of civil procedure.

b. The petition contains, at a minimum, all of the following: (1) The legal name, age, and domicile, if any, of the child. (2) The names, residences, and domicile of the following:

(a) Living parents of the child. (b) Guardian of the child. (c) Custodian of the child. (d) Guardian ad litem of the child. (e) Petitioner. (f) Person standing in the place of the parents of the child.

(3) A plain statement that the petitioner believes that the established father is not the biological father of the child, any reasons for this belief, and that the petitioner wishes to have the paternity determination set aside.

(4) A plain statement explaining why the petitioner does not know any of the information required under subparagraphs (1) and (2).

5

c. Notice of the action to overcome paternity is served on any parent of the child not initiating the action and any assignee of the support obligation, in accordance with the rules of civil procedure and in accordance with the following: (1) If enforcement services are being provided by the child support recovery unit

pursuant to chapter 252B, notice shall also be served on the child support recovery unit.

(2) The responding party shall have twenty days from the date of the service of the notice to file a written response with the court.

d. A guardian ad litem is appointed for the child. e. Blood or genetic testing is conducted in accordance with section 600B.41 or chapter

252F. (1) Unless otherwise specified pursuant to subsection 2 or 9, blood or genetic

testing shall be conducted in an action to overcome the establishment of paternity.

(2) Unless otherwise specified in this section, section 600B.41 applies to blood or genetic tests conducted as the result of an action brought to overcome paternity.

(3) The court may order additional testing to be conducted by the expert or an independent expert in order to confirm a test upon which an expert concludes that the established father is not the biological father of the child.

f. The court finds all of the following: (1) That the conclusion of the expert as disclosed by the evidence based upon blood

or genetic testing demonstrates that the established father is not the biological father of the child.

(2) If paternity was established pursuant to section 252A.3A, the signed affidavit was based on fraud, duress, or material mistake of fact, as shown by the petitioner.

4. If the court finds that the establishment of paternity is overcome, in accordance with all of the

conditions prescribed, the court shall enter an order which provides all of the following: a. That the established father is relieved of any and all future support obligations owed on

behalf of the child from the date that the order determining that the established father is not the biological father is filed.

b. That any unpaid support due prior to the date the order determining that the established father is not the biological father is filed, is satisfied.

5. An action brought under this section shall be heard and decided by the court, and shall not be

subject to a jury trial. 6. a. If the court determines that test results conducted in accordance with section 600B.41

or chapter 252F exclude the established father as the biological father, the court may dismiss the action to overcome paternity and preserve the paternity determination only if all of the following apply:

6

(1) The established father requests that paternity be preserved and that the parent‐child relationship, as defined in section 600A.2, be continued.

(2) The court finds that it is in the best interest of the child to preserve paternity. In determining the best interest of the child, the court shall consider all of the following: (a) The age of the child. (b) The length of time since the establishment of paternity. (c) The previous relationship between the child and the established father,

including but not limited to the duration and frequency of any time periods during which the child and established father resided in the same household or engaged in a parent‐child relationship as defined in section 600A.2.

(d) The possibility that the child could benefit by establishing the child's actual paternity.

(e) Additional factors which the court determines are relevant to the individual situation.

(3) The biological father is a party to the action and does not object to termination of the biological father's parental rights, or the established father petitions the court for termination of the biological father's parental rights and the court grants the petition pursuant to chapter 600A.

b. If the court dismisses the action to overcome paternity and preserves the paternity determination under this subsection, the court shall enter an order establishing that the parent‐child relationship exists between the established father and the child, and including establishment of a support obligation pursuant to section 598.21B and provision of custody and visitation pursuant to section 598.41.

7. a. For any order entered under this section on or before May 21, 1997, in which the court's

determination excludes the established father as the biological father but dismisses the action to overcome paternity and preserves paternity, the established father may petition the court to issue an order which provides all of the following: (1) That the parental rights of the established father are terminated. (2) That the established father is relieved of any and all future support obligations

owed on behalf of the child from the date the order under this subsection is filed.

b. The established father may proceed pro se under this subsection. The supreme court shall prescribe standard forms for use under this subsection and shall distribute the forms to the clerks of the district court.

c. If a petition is filed pursuant to this section and notice is served on any parent of the child not filing the petition and any assignee of the support obligation, the court shall grant the petition.

8. The costs of testing, the fee of the guardian ad litem, and all court costs shall be paid by the

person bringing the action to overcome paternity.

7

9. This section shall not be construed as a basis for termination of an adoption decree or for discharging the obligation of an adoptive father to an adoptive child pursuant to section 600B.5.

10. Unless specifically addressed in an order entered pursuant to this section, provisions previously

established by the court order regarding custody or visitation of the child are unaffected by an action brought under this section.

11. Participation of the child support recovery unit created in section 252B.2 in an action brought

under this section shall be limited as follows: a. The unit shall only participate in actions if services are being provided by the unit

pursuant to chapter 252B. b. When services are being provided by the unit under chapter 252B, the unit may enter an

administrative order for blood and genetic tests pursuant to chapter 252F. c. The unit is not responsible for or required to provide for or assist in obtaining blood or

genetic tests in any case in which services are not being provided by the unit. d. The unit is not responsible for the costs of blood or genetic testing conducted pursuant

to an action brought under this section. e. Pursuant to section 252B.7, subsection 4, an attorney employed by the unit represents

the state in any action under this section. The unit's attorney is not the legal representative of the mother, the established father, or the child in any action brought under this section.

8

Cases:

Interested Party:

Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999). Establishes that putative father may commence a paternity

action under 600B.41A, in spite of the language of the statute limiting initiation of an action to the mother or

legal father.

Issue Preclusion:

In re Marriage of Rosenberry, 603 N.W.2d 606 (Iowa 1999). This case may have led to the passage of Iowa Code

§ 598.21E, as it seems to be made moot by that statute. During a divorce proceeding, Connie became pregnant

with what would have been the couple’s fourth child. Stipulation and decree both stated that David was not the

fourth child’s father, and he would have no support obligations regarding that child. Ten years later, after

several modification actions regarding support issues related to the other three children, Connie asked the

court, as part of another modification action, for a determination of paternity. She alleged that David was

indeed the father of the fourth child and received biologic testing in an attempt to prove it. The district court

rejected her claim, sealing the records of the biologic testing. The Supreme Court ruled that she was unable to

raise this issue, citing that issue preclusion barred any further litigation of paternity.

In re Marriage of Finch, 788 N.W.2d 398 (Iowa App. 2010) (Unpublished). Ex‐husband attempted to bring

disestablishment action which was dismissed based on issue preclusion. Previous attempt at disestablishment

failed on procedure and based on consideration of merits, and the appeals court agreed with the trial court that

ex‐husband could not attempt to relitigate the matter.

In re Briggs, 746 N.W.2d 279 (Iowa App. 2008) (Unpublished). Biological parent appealed decision finding he

had waived his right to establish paternity. The appeals court examined the facts of the case to determine the

level of constructive knowledge regarding the paternity of the children in question, finding that the biological

father did not have sufficient constructive knowledge of paternity to waive the determination.

Treimer v. Lett, 587 N.W.2d 622 (Iowa App. 1998). Disestablishment case that was initiated by the biological

father after a divorce case between mother and established father had already reached the appeals stage. After

the divorce was appealed, the appeals court rejected the established father’s equitable parent argument and

gave sole legal custody to the mother. Mother, then, was left with the child but with no father to receive

support from, so she filed a cross petition with the biological father seeking to establish legal fatherhood in him.

The previously established father argued issue preclusion prevented mother from bringing her petition, but the

appeals court disagreed. “In determining custody and support in the dissolution, we find it was not necessary

for the court to establish paternity.” Id. at 625.

Dye v. Geiger, 554 N.W.2d 538 (Iowa 1996). Ex‐husband sought to disestablish after an eight year relationship

with his son but the petition was denied citing the best interests of the child. This case is of questionable

relevance because § 600B.41A no longer makes a “best interest” consideration one of several factors for a court

in considering disestablishment. The way the statute is written now limits “best interest” consideration to a

9

permissive dismissal of the disestablishment petition only if the established father wants paternity to be

preserved.

Procedure and Due Process:

In re Marriage of Steinke, 801 N.W.2d 34 (Iowa App. 2011) (Unpublished). Parties failed to follow procedures for

disestablishment under 600B.41A, and trial court’s ruling finding “equitable parent” was reversed. Appeals

court refused to recognize “equitable parent” and instead found that ex‐husband, as established father,

continued to be legal parent of child.

Koos v. Willson, 697 N.W.2d 127 (Iowa App. 2005) (Unpublished). What started off as a custody case became a

paternity disestablishment case after biological father intervened. Legal father was established by paternity

affidavit, but paternity tests available to the trial court demonstrated that biological dad, not established dad,

was the child’s father. Disestablishment failed for two reasons: Biological father failed to follow the evidentiary

proscription under 600B.41A, and did not otherwise provide an expert’s foundation for paternity testing; and

the appeals court found that he had waived his right to establish paternity when he allowed the legal father to

raise and support the child on his own for four years. This case provides a good explanation of the due process

rights attributable to biological fathers under the Callender case.

Attorney and GAL Fees:

Fiscus v. Fiscus, 819 N.W.2d 420 (Iowa App. 2012). Divorce decree did not address disestablishment but

awarded parents shared physical care, though the mother (Teresa) told husband (Michael) that he was not the

child’s father after the child was nine years old. The parties later stipulated to a modification, and later still

Teresa bought a disestablishment action under 600B.41A. Michael filed separate action to terminate the

paternity of the biological father, using 600B.41A(6) and 600A. One G.A.L. was appointed for the

disestablishment and termination cases, and the cases themselves were consolidated. District court terminated

the parental rights of the biological father and dismissed Teresa’s petition for disestablishment, ordering Teresa

to pay Michael’s attorney fees and G.A.L. fees for both cases. The Court of Appeals upheld the award of fees

and costs, finding Teresa sought a modification in the event paternity was preserved, allowing fees to be

awarded under §600B.26. “[Teresa] employed the statutory vehicle of chapter 600B for a dual purpose—

attempting to overcome Michael’s paternity under section 600B.41A, but if unsuccessful, to then utilize section

600B.41A(6)(b) to modify ‘custody, visitation and child support’ provisions of the prior dissolution decree.”

Interesting Cases, generally:

Dier v. Peters, 815 N.W.2d 1 (Iowa 2012). Interesting in that it recognized the common law action for paternity

fraud. Also unique in that the Court was concerned with financial support that was voluntarily paid, not court

ordered. This order does not allow previously paid support pursuant to a court order to be recovered.

Gartner v. Iowa Department of Public Health, 830 N.W.2d 335 (Iowa 2013). Iowa Supreme Court found §

144.13(2), referring to “the name of the husband,” to be “unconstitutional as applied to married lesbian couples

who have a child born to them during marriage.” Lesbian spouse of birth mother is entitled to both have her

name on the child’s birth certificate without undergoing process of step parent adoption.

The Dream & Reality:Expectations Placed on Those Who Represent Children in Family Court

11:00 a.m.-12:00 p.m.

Presented byBarbara Durden Davis, P.C. Jenny Schulz1200 Valley West Drive, Kids First Law CenterSuite 206-16 420 6th Street SE, Suite 160West Des Moines, Iowa 50266 Cedar Rapids, IA 52401Phone: 515-225-9300 Phone: 319-366-3308

Hon. Eliza Ovrom Ellen Ramsey-KacenaPolk Co. Courthouse 4403 First Avenue SE5th & Mulberry Suite 300Des Moines, Iowa 50309 Cedar Rapids, IA 52402Phone: 515-286-3889 Phone: 319-393-4683



1

I. When to Ask for Appointment of a Child’s Representative

A. May be appropriate in cases involving the following allegations or concerns:

1. Request of extraordinary remedies such as supervised visitation, termination

or suspending parenting time, etc.

2. Relocation that could substantially reduce the child’s time with a parent or

sibling

3. Child’s concerns or views

4. Illegal drug or alcohol abuse by a child or a party

5. Disputed paternity

6. Child abduction or risk of future abduction

7. Domestic violence or child abuse

8. Mental health problems of the child or a party

9. Special physical, educational, or mental health needs of a child that require

investigation or advocacy

10. A high level of acrimony

11. Inappropriate adult influence or manipulation

12. Interference with custody or parenting time

13. A need for more evidence relevant to the best interests of the child

14. A need to minimize the harm to the child from the processes of family

separation and litigation

B. Potential Benefits of Involving a Child Representative:

1. Improves the judge’s ability to evaluate the best interests of the child

2. Cases resolve more quickly

3. Cases are more likely to settle

4. Cases are less likely to return to court

5. Families are connected with needed services

6. Children are exposed to less conflict

7. Parental communication improves

8. Family relationships are strengthened

9. Children have less anxiety (when questions are answered, they know what to

expect, and family situations improve)

10. Children have input

2

C. Appoint GAL/Best Interests Attorney or Child’s Attorney? Consider:

1. Children’s age

2. The purpose of the appointment—what you want the focus to be

3. Manipulation to the child

4. Potential conflict between siblings

5. Overlap with roles of others involved (custody evaluator, child counselor)

6. Potential conflict between child’s wishes and best interests

II. The Duties of All Child Representatives

These duties apply to all child representatives, whether Child’s Attorney or Guardian ad

Litem (GAL)/Best Interests Attorney.

A. Accept Appointment

1. The attorney should obtain a clear order of appointment.

2. If the order is incompatible with ethical duties, the attorney should decline

appointment or inform the court and ask for clarification.

3. The same person can legally serve as guardian ad litem and attorney for the

child. Iowa Code 598.12(3). However:

a. If there’s a conflict between roles, must continue as the child’s attorney

and the court may appoint a GAL.

b. ABA Standards of Practice for Lawyers Representing Children in

Custody Cases says one person cannot perform both roles.

c. Can you perform both roles and comply with ethical rules?

B. Meet with the Child

1. Meet with the child before court hearings and upon significant events.

2. Make sure that communications fit the child’s age and developmental level.

3. Explain role.

4. Give counsel and advice.

5. Ask non-suggestive questions to ascertain child’s view.

6. Explain the nature and status of the legal proceeding in age-appropriate terms.

C. Investigate the Facts

1. Review the court file.

2. Remind other parties to copy you on pleadings and discovery.

3. Interview persons with knowledge of the child’s history and conditions.

3

a. Make sure to obtain attorneys’ permission to speak with any represented

party.

4. Review relevant records.

D. Encourage Settlement

1. Consider and propose alternative dispute resolution methods.

2. Take any appropriate action to expedite the proceeding.

3. Review proposed settlements and explain to the court the basis for any

opposition.

E. Participate in Court

1. Make sure to identify role (GAL vs. Child’s Attorney).

2. Participate fully and do not merely defer to other parties.

3. Participate in any legal proceeding such as depositions, pretrial conferences,

and hearings.

4. File motions and responses.

5. Present and cross-examine witnesses and exhibits.

F. If the Child Participates in Court

1. If appropriate, make arguments and introduce evidence of the child’s

competency to testify, or to show the reliability of the child’s testimony or

out-of-court statements.

2. Prepare the child if the child will testify or meet with the judge.

3. Seek to minimize any harm to the child from the process such as having the

child testify in chambers without the parents present.

4. Possibly ask for restrictions on how questions are phrased to the child.

G. Protect the Child

1. Remedy conditions that deny a child stability and security.

2. Protect the child from litigation’s collateral damage.

III. The Unique Duties of Child Representatives

A. Child’s Attorney

1. Appointment under Iowa Code § 598.12(1)

2. Provides independent legal counsel for a child (represents “legal interests”)

and owes the same duties of undivided loyalty, confidentiality, and competent

representation as are due an adult client.

4

3. Bound by all ethical rules:

a. Allocation of authority between lawyer and client

IRPC 32:1.2(a)

b. Confidentiality

IRPC 32:1.6

c. Conflict of interest (Note: siblings with fundamentally incompatible

outcomes create a conflict)

IRPC 32:1.7

d. Client with diminished capabilities

IRPC 32:1.14

4. Maintain attorney-client privilege (This is why the attorney cannot assume

any other role for the child once the attorney role is assumed.)

5. Maximize the child’s ability to direct the representation and abide by the

child’s decisions about the objectives of the representation:

a. If the child is unable to express objectives, advocate the child’s legal

interests.

b. If the child does not wish to express objectives, the attorney follows the

client’s directive of whether to take a position or remain silent.

c. If the child’s objectives would put the child at risk of substantial harm

(and are not merely contrary to the lawyer’s opinion of the child’s

interests), counsel the child. If unsuccessful, request appointment of a

Best Interests Attorney/GAL.

6. Child decides whether to testify or not after an informed discussion.

7. Appeal: Discuss with the child the possibility of an appeal. Appeal if there is

merit and the child wants to appeal the order.

B. GAL/Best Interests Attorney

1. Appointment under Iowa Code § 598.12(2)

2. Provides independent legal services for the purpose of protecting a child’s

best interests, without being bound by the child’s directive or objectives.

Investigative requirements under 598.12(2):

a. Interview the child before every court hearing

b. Interview both parents

c. Visit both parents’ homes

d. Interview any person providing medical, mental health, social,

educational, or other services for the child

e. Obtain firsthand knowledge of facts, if possible

5

3. Bound by ethical rules except that there is no traditional attorney-client

relationship

a. The client is not the child, but the best interests of the child.

b. Siblings with conflicting views do not pose a conflict.

4. Practice differs as to confidentiality of client communications. The attorney

may use client confidences without disclosing the source.

5. Not bound by child objectives:

a. The attorney should advocate the child’s best interests (based on

objective legal criteria and not on the lawyer’s personal values and

biases).

b. Investigate the child’s views and report them to the court unless the

child requests not to.

c. The attorney will not necessarily advocate what the child wants.

6. GAL decides whether child testifies.

7. Appeal when:

a. The trial court’s decision is significantly detrimental to the child,

b. An appeal could be successful, and

c. The benefit to the child of an appeal outweighs the detriment of

extended litigation.

IV. Report/Recommendations/Testimony

A. All Representatives

1. Call and examine witnesses and offer evidence. Offer traditional evidence-

based legal arguments at hearings.

2. Report or recommendation is not admissible except by agreement or

stipulation of the parties.

In re Marriage of Gravatt, 365 N.W.2d 48, 49 (Iowa Ct. App. 1985);

In re Marriage of Anderson, 745 N.W.2d 95 (Iowa Ct. App. 2007)

(unpublished), citing:

o In re Marriage of Williams, 303 N.W. 2d 160, 163 (Iowa 1981)

(“Unless a social worker’s written report is properly before the court

by agreement or stipulation, it should not be considered after a

proper objection.”)

o In re Marriage of Reschly, 334 N.W.2d 720, 723 (Iowa 1983)

(noting a court-ordered custody investigation by a psychiatrist

should not have been considered at any stage of the proceedings

because it was hearsay).

6

3. ABA Standards say that child representatives (Child’s Attorney or GAL) may

not testify, file a report, or make recommendations (not adopted in Iowa).

B. Child’s Attorneys

1. May not testify as a witness. In re Marriage of Joens, 284 N.W.2d 326, 329

(Iowa 1979). However, explaining what result a client wants or proffering

what you hope to prove is not testifying.

2. A report/recommendation is frowned upon: “The attorney is to investigate and

to secure the testimony of witnesses helpful to the cause of the children. There

is no provision that he ‘report’ or that he make recommendations. His findings

are not made admissible as evidence in the case.” In re Marriage of Joens.

C. GAL/Best Interest Attorneys

1. Whether GAL can testify as a witness has not been decided by Iowa courts.

Does testifying violate IRPC 32:3.7 (lawyer as witness)?

V. Qualifications and Training

A. Child representatives should have:

1. Familiarity with available services for children and families

2. Sufficient time to handle the case (average case takes 30 hours)

3. Experience (better chance of settlement)

4. Independence from either party

5. Adequate, ongoing training on:

a. Applicable law

b. Applicable guidelines and standards

c. Children’s development, needs, and abilities at different ages

d. Communicating with children

e. Presenting child testimony

f. Recognizing, evaluating and understanding evidence of:

(1) child abuse and neglect

(2) domestic violence

(3) substance abuse

—SAMPLE APPOINTMENT ORDER—

IN THE IOWA DISTRICT COURT IN AND FOR _____ COUNTY

IN RE THE MARRIAGE OF _______ AND _______ Upon the Petition of : : , : Equity No. : Petitioner, : : and Concerning : ORDER APPOINTING : ATTORNEY FOR CHILD , : : Respondent. : This matter comes before the Court on this ______ day of ____________, 2010. Upon review of the pending Motion and any opposition thereto, the Court finds that appointing an attorney for the child(ren) is necessary to help the Court decide the case properly because of ___(factors/allegations)____________________. Attorney _____________________ is hereby appointed as the attorney for the child(ren), __(name(s))_____, born __(date(s))_______. She will represent the child(ren) in a normal attorney-client relationship. She will not testify or submit a report to the Court. The parties or their attorneys shall send copies to Attorney __________ of all pleadings and discovery exchanges. She will participate as an attorney in all court proceedings. The parties shall ensure that Attorney _____________ has access to the child(ren). She shall also have access to confidential information about the child(ren) without the necessity of any further order or release. Such information includes but is not limited to social services, drug and alcohol treatment, medical, mental health, law enforcement, school, probate and court records, records of trusts and accounts of which the child(ren) is a beneficiary/are beneficiaries, and other records relevant to the case, including court records of parties. The parties shall be responsible for paying the fee to Attorney _________ as follows:

Petitioner shall pay $________. Respondent shall pay $________.

This fee shall be paid directly to (attorney name/address) , within 30 days. ___________________________________ Judge, Sixth Judicial District of Iowa

—SAMPLE APPOINTMENT ORDER—

IN RE: THE MARRIAGE OF ____________ AND ____________ UPON THE PETITION OF ____________________, Petitioner, AND CONCERNING, ____________________, Respondent.

) ) ) ) ) ) ) ) ) ) ) )

No. ____________________

ORDER APPOINTING ATTORNEY FOR CHILD FOR A LIMITED PURPOSE

This matter comes before the Court on this ______ day of ________________, 2011. Upon review of Respondent’s Motion, and any resistance thereto, the Court finds that appointing an attorney for the child for a limited purpose is necessary in order to facilitate the child’s testimony in the least harmful way. Attorney ______________________ is hereby appointed as the attorney for the child, __________________, born _______________. Pursuant to Court Rule _____, the attorney is appointed to represent the child in a normal attorney-client relationship for the limited purpose of: ascertaining if the child would like to testify, and if so, preparing and assisting the child in testifying as well as making any requests to the parties or court concerning the child’s testimony. She will not testify or submit a report to the Court. The parties or their attorneys shall send copies to the Child’s Attorney of all pleadings and of discovery exchanges concerning the child’s testimony. The parties shall ensure that the Child’s Attorney has access to the child. She shall also have access to confidential information about the child without the necessity of any further order or release. Such information includes but is not limited to social services, drug and alcohol treatment, medical, mental health, law enforcement, school, probate and court records, records of trusts and accounts of which the child is a beneficiary, and other records relevant to the case, including court records of parties. The parties shall be responsible for paying the fee of $_____ to Attorney ________. The

parties’ individual shares of the responsibility for the fee are as follows: Petitioner to pay ____% and Respondent to pay ____%.

The attorney will represent the child without payment.

___________________________________ Judge

IOWA CODE § 598.12: ATTORNEY OR GUARDIAN AD LITEM FOR MINOR CHILD—INVESTIGATIONS. 1. The court may appoint an attorney to represent the legal interests of the minor child or children of the parties. The attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify before the court on matters pertinent to the legal interests of the children.

2. The court may appoint a guardian ad litem to represent the best interests of the minor child or children of the parties.

a. Unless otherwise enlarged or circumscribed by a court or juvenile court having jurisdiction over the child or by operation of law, the duties of a guardian ad litem with respect to a child shall include all of the following:

(1) Conducting general in-person interviews with the child, if the child's age is appropriate for the interview, and interviewing each parent, guardian, or other person having custody of the child, if authorized by the person's legal counsel.

(2) Conducting interviews with the child, if the child's age is appropriate for the interview, prior to any court-ordered hearing.

(3) Visiting the home, residence, or both home and residence of the child and any prospective home or residence of the child, including visiting the home or residence or prospective home or residence each time placement is changed.

(4) Interviewing any person providing medical, mental health, social, educational, or other services to the child, prior to any court-ordered hearing.

(5) Obtaining firsthand knowledge, if possible, of facts, circumstances, and parties involved in the matter in which the person is appointed guardian ad litem.

(6) Attending any hearings in the matter in which the person is appointed guardian ad litem.

b. The order appointing the guardian ad litem shall grant authorization to the guardian ad litem to interview any relevant person and inspect and copy any records relevant to the proceedings, if not prohibited by federal law. The order shall specify that the guardian ad litem may interview any person providing medical, mental health, social, educational, or other services to the child; may attend any meeting with the medical or mental health providers, service providers, organizations, or educational institutions regarding the child, if deemed necessary by the guardian ad litem; and may inspect and copy any records relevant to the proceedings.

3. The same person may serve both as the child's legal counsel and as guardian ad litem. However, the court may appoint a separate guardian ad litem, if the same person cannot properly represent the legal interests of the child as legal counsel and also represent the best interests of the child as guardian ad litem, or a separate guardian ad litem is required to fulfill the requirements of subsection 2.

4. The court may require that an appropriate agency make an investigation of both parties regarding the home conditions, parenting capabilities, and other matters pertinent to the best interests of the child or children in a dispute concerning custody of the child or children. The investigation report completed by the appropriate agency shall be submitted to the court and available to both parties. The investigation report completed by the appropriate agency shall be a part of the record unless otherwise ordered by the court.

5. The court shall enter an order in favor of the attorney, the guardian ad litem, or an appropriate agency for fees and disbursements, and the amount shall be charged against the party responsible for court costs unless the court determines that the party responsible for costs is indigent, in which event the fees shall be borne by the county.

In re Marriage of Anderson, No. 7-779 / 07-0159, Iowa Ct. App. (12/28/07)

…On July 26, 2007, Christine [mother] filed an application, under Iowa Code section 598.12(1) (Supp. 2005), for the appointment of a guardian ad litem (GAL) for Camden [child].…The district court appointed Christine Sand, an attorney, as “guardian ad litem” pursuant to section 598.12(1), and capped her fees at $500. Sand filed an initial report and was prepared to file a supplemental report. Immediately prior to the trial on November 1, 2006, Steven [father] objected to the court’s consideration of Sand’s reports.

The district court ruled that Sand’s report was to be stricken and removed from the court file, and the supplemental report could not be filed. The court also ruled Sand could not testify as a witness. The court determined Sand’s role was limited under section 598.12, and she could only call and/or question witnesses. Sand did not call any additional witnesses. She questioned Steven briefly about his prior marijuana use. After that she asked to be excused. The court stated, “Sure. Unless you want to stay and participate. No. You’re excused.” …

Christine raises several issues regarding the scope of the duties of Sand in this case. She claims the district court should not have stricken Sand’s reports, she should have been allowed to call Sand as a witness, and Sand should not have been dismissed from the trial.

We note there is an inherent inconsistency in the application and order appointing attorney Sand in this case. Christine requested the appointment of a GAL, but cited to section 598.12(1), which provides “[t]he court may appoint an attorney to represent the legal interests of the minor child or children of the parties.” The court’s authority to appoint a GAL is found in section 598.12(2).1 The court’s order stated, “upon Respondent’s request that the Court appoint a Guardian ad Litem for the minor child of the parties, Camden Anderson, as provided for in Iowa Code § 598.12(1), this Court finds that said request is appropriate and should be granted.”

Section 598.12(1) applies to a child’s attorney and provides, “The attorney shall be empowered to make independent investigations and to cause witnesses to appear and testify before the court on matters pertinent to the legal interests of the children.” In considering this statute, the supreme court has stated:

Significantly the attorney is to investigate and to secure the testimony of witnesses helpful to the cause of the children. There is no provision that he “report” or that he make recommendations. His findings are not made admissible as evidence in the case. It appears the legislature recognized that in the rancor and bitterness of a custody fight parents might well be insensitive to the best interests of their children. It provided that the children have representation separate and apart from either parent.

In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979). An attorney for a child may not testify as a witness. In re Marriage of Gaumer, 303 N.W.2d 136, 138 (Iowa 1981). A report or recommendation of the attorney for a child may be considered by the court only by the agreement or stipulation of the parties. Joens, 284 N.W.2d at 329; In re Marriage of Gravatt, 365 N.W.2d 48, 49 (Iowa Ct. App. 1985).

1 Section 598.12(2) provides, “The court may appoint a guardian ad litem to represent the best interests of the minor child or children of the parties.”

Christine argues Sand was actually appointed as a GAL under section 598.12(2). A GAL has more extensive duties, including interviewing the parties, visiting the home, interviewing others providing services to the child, and “[o]btaining firsthand knowledge, if possible, of facts, circumstances, and parties involved in the matter.” Iowa Code § 598.12(2)(a). We note, however, that section 598.12(2)(b) provides that the order appointing a GAL must give the GAL authority to interview witnesses, and copy and inspect records. The order in this case did not give Sand authority to do these things. Furthermore, the code section cited by the court in appointing Sand was section 598.12(1). We conclude Sand was not appointed as a GAL under section 598.12(2); she was appointed to be an attorney for the child, under section 598.12(1).

Even if Sand had been a GAL, her report would still be inadmissible as hearsay. The supreme court has stated, “Unless a social worker’s written report is properly before the court by agreement or stipulation, it should not be considered after a proper objection.” In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981). See also In re Marriage of Reschly, 334 N.W.2d 720, 723 (Iowa 1983) (noting a court-ordered custody investigation by a psychiatrist should not have been considered at any stage of the proceedings because it was hearsay).

We conclude the district court properly did not consider the report filed by Sand or her proposed supplemental report. In addition, the court properly found Sand could not testify as a witness. As to Sand’s participation in the hearing, we find Sand asked to be excused, and there was no objection by the parties prior to her departure. Therefore, error has not been preserved on the issue of Sand’s participation in the hearing. See Hill v. Fleetguard, Inc., 705 N.W.2d 665, 670 (Iowa 2005) (noting we do not consider issues raised for the first time on appeal).

Dealing with Special Needs Clients and Dependents in Family Law Cases

1:00 p.m.-2:00 p.m.

Presented byDiane Dornburg Hon. Craig BlockCarney & Appleby PLC Polk County Courthouse400 Homestead Building 500 Mulberry Street, Room 212Des Moines, IA 50309 Des Moines, Iowa 50309Phone: 515-282-6803 Phone: 515-286-3772

Dennis Burns Amy BotkinConnect the Dots 4 Life Vocational ConsultantFounder & CEO Vocational Resources, Plus LLC6210 Meadowcrest Dr. P.O. Box 16005Suite 104 Des Moines, Iowa 50316Johnston, IA 50131 Phone: 515-282-7753

.



Handle

with

Care

.

LIFE CARE PLAN

http://c9900913.r13.cf2.rackcdn.com/03-15-24_pg-photo-the-widenhofer-family_original.jpg

The information provided is not written or intended as tax or legal advice and may not be relied on for such purposes. Connect the Dots 4 Life, its employees and representatives are not authorized to give tax or legal advice. Individuals are encouraged to seek advice from their own tax or legal counsel. Individuals involved in the estate planning process should work with an estate planning team, including their own personal legal and/or tax counsel.

Important Disclosure

To the world, you

may be one person,

but to one person

you may be the

world.

- Heather Cortez, Poet

A Life-Long Commitment-and Beyond

General Population Living Longer

Special Needs Children Living Longer

Think and Plan

Labor of Love

The life expectancy of Down syndrome children has increased from 25 years in 1983 to about 60 years today.

http://www.cdadc.com/ds/downsyndromelifeexpectancy.htm



Physically

Emotionally

Financially

Address

…once you are gone?

Same Estate Planning Steps That Parents Usually Take in Divorce

Plus, Additional Steps Unique to Planning for a Special Needs Child

Steps to Take

Will

General durable power of attorney for financial affairs

Durable power of attorney for health care

General Estate Planning Steps

Drafting a Letter of Intent

Ensuring Guardianship

Financial Security

Tip – A letter of intent should be updated on

a regular basis. Recommend to your client to select one day a year to review the letter of intent and make any needed changes.

Steps Unique to Special Needs

FINANCIALEE S SECURITY

Disabled adults who may qualify for both Medicaid and Supplemental Security Income, may not receive these government benefits if their assets exceed $2,000

A strategy: Place assets (including inheritance, gifts, life insurance, etc.) in a carefully drafted trust.

Distributions from a Special Needs Trust will not jeopardize a beneficiary’s eligibility for needs-based government assistance such as Medicaid and Supplemental Security Income (SSI), if properly established and administered within a certain trust arrangement.

Your Client Know???

Coordinate available resources

Ensure continuation of government benefits

Provide supplemental needs for life

Improve quality of life / Maintain standard of living

Direct final distributions

Establish Special Needs Trust

1. Pension / Insurance type: Benefits based on contribution into

the program, not based on a person’s financial need Social Security Disability Insurance (SSDI)*

Medicare**

2. Needs Based type: Determine eligibility on disabled person’s monthly countable income and resources

Supplemental Security Income (SSI)***

Medicaid****

Two Types of Government

Benefits

For information about SSDI go to http://ssa.gov/pgm/links_disability.htm. Information is available by

telephone, mail, in person at an office. The toll-free number is 1-800-772-1213

**Contact the Social Security Administration at Medicare enrollment and eligibility at 800-772-1213 or

www.medicare.gov.

***For information about SSI go to http://www.ssa/gov/ssi. Information is available by telephone, mail or in

person at an office. The toll-free number is 1-800-772-1213.

****For more information regarding benefits provided by Medicare or Medicaid (Medi-CAL in California),

visit www.cms.hhs.gov. Medicaid guidelines vary by state. Contact your local Medicaid office for details

http://ssa.gov/pgm/links_disability.htm

http://www.medicare.gov/

http://www.ssa/gov/ssi

http://www.cms.hhs.gov/

Sources

Social Security Medicaid Medicare

Basic Personal Needs

Government Benefits

Room and

Board

Care and Supervision

Employment/Activities

Medical Care

Sources Special Needs

Trust

Professional Fees

Medical/Dental Care excluded from social benefits

Gifts on Special Occasions

Vacations & Trips

Basic care if social benefits are cutback

Personal Hygiene/Grooming Costs

Understand how the financial needs of the individual and how the social, medical and legal needs impact their life.

Attention to details

Coordinate strategies

Offer options that make the most sense based on individual needs

Ensure that benefits such as Medicaid* or Supplemental Security Income** won't unintentionally be jeopardized

One word

Focus on accommodating the parent/caregiver to maintain the lifestyle of the special needs individual

Attorney – FP Relationship

* For more information regarding benefits provided by Medicare or Medicaid (Medi-CAL in

California), visit www.cms.hhs.gov. Medicaid guidelines vary by state. Contact your local

Medicaid office for details.

http://www.cms.hhs.gov/

Most Importantly

WORK WITH A FINANCIAL PROFESSINAL that

specializes in working with individuals with

disabilities and/or special needs!

No one professional can provide everything

a family needs. An integrated team needs to

be made up of, an attorney, a CPA, and

others, such as social workers and caregivers,

and a financial professional who specializes

in working with special needs, all working

together is the best way to serve the

individual.

Make sure the professionals you choose

work with a qualified, experienced and

involved in the area of special needs.

*

Dennis Burns

Founder and CEO

Connect the Dots 4 Life

Phone: 515-371-6768

Email: [email protected]

*Dennis Burns, a Registered Investment Advisor, offers securities and investment advisory

services through AXA Advisors, LLC (NY, NY 212-314-4600), member FINRA/SIPC, and is an

agent who offers annuity and insurance products through AXA Network, LLC and /or its insurance

agency subsidiaries. Connect the Dots 4 Life is not owned or operated by AXA Advisors or AXA

Network.

Vocational Resources Plus LLC * Amy E. Botkin, MS, CRC, CLCP

10-25-13 ~ Hope you are enjoying the conference!

Vocational Resources Plus LLC is owned by Amy E. Botkin, MS., CRC, CLCP Contact Amy at 515-282-7753 or [email protected]

for more information. Amy’s blog is found at www.lcpresourcesplus.com where you’ll find a lively portrayal of her insight about work,

healthy living and how Amy likes to facilitate ways to make others feel happy!

Vocational Resources Plus LLC delivers unique offerings to address complex employment related and health

related issues on legal cases in the areas of personal injury, disability, workers’ compensation, and family law by

consulting with diverse clientele. Clientele include: individuals and families, attorneys, physicians, healthcare

providers, insurance adjusters, educators, human resource representatives, state and federal agencies, community

service providers, and associated professionals to positively direct a case.

Amy E. Botkin is the owner of Vocational Resources Plus LLC. The company formed in 1999 and offers

professional services focusing on *Rehabilitation Counseling* and **Life Care Planning**.

Amy, an Iowa State University (1995) and Drake University alum (2004) is a Certified Rehabilitation

Counselor, a Certified Job Placement Specialist, and a Certified Life Care Planner. Amy has expertise in

rehabilitation counseling, vocational rehabilitation, life care planning, independent living needs assessments,

comprehensive job placement, job development, job seeking skills training, community health education,

occupational health, social security disability hearings and consumer support brokering. Amy is also skilled at

serving as an expert witness.

*REHABILITATION COUNSELING*

It can be complex to describe exactly what a rehabilitation counselor does, so to simplify its definition I borrowed

from Wikipedia: Rehabilitation Counseling is focused on helping people who have disabilities achieve their

personal, career, and independent living goals through a counseling process. That’s what Amy loves to do!

Vocational Resources Plus LLC helps direct workers’ compensation, personal injury, disability, and civil cases by

providing consultation, qualitative research services and reporting, as well as direct service provision. Consultation

is helpful to determine what services are needed on the file. Research is based on a wide range of criteria and utilizes

solid methodology and fact gathering techniques. Objective reporting details up-to-date information to define and

enhance the direction of the case. Assignments vary greatly, and can include differences in age, education, skills,

abilities, aptitudes, socio-economic factors, physical limitations and an assortment of employability factors.

A valuable service Amy provides is Vocational Assessment and Evaluation. This service helps to determine

whether an individual could return-to-work, and if so, at what. It accurately assesses vocational potential for a

variety of realistic employment and training options within a short time period while answering questions regarding

capacity to achieve success. Here’s a sample for informational purposes only outlining what a report may look like:

Vocational Resources Plus LLC

P.O. Box 16005 Des Moines, Iowa 50316

Phone (515) 282-7753 eFax (914) 265-8709 [email protected]

VOCATIONAL ASSESSMENT & EVALUATION REPORT - SAMPLE

INDIVIDUAL’S NAME

DATE






INTRODUCTION: A vocational evaluation is an integral component in vocational rehabilitation. It sets the

foundation for future services. An evaluation begins by interviewing the individual and gathering relevant work-life

background information. Sources of information arise from personal contacts, vocational worksheets, review of case

file information, behavioral observation, and vocational consulting expertise.

The assessment process includes identifying the evaluee’s vocational strengths, employment interests,

skills/aptitudes, behaviors, and general readiness for work. Research is performed and data is analyzed to evaluate

whether or not the individual could return-to-work, and if so, at what. The outcome of the evaluation is detailed to

provide direction toward appropriate occupational placement. Areas of concern or need and other pertinent

vocational-related factors are presented to support future placement services.

CASE ACTIVITIES: Describes preliminary actions regarding the case and chronology of activity.

INITIAL VOCATIONAL INTERVIEW: Details on the date, place, and time of the meeting are presented. The

individual’s presentation, personality traits, appearance, communication style, along with pertinent information in

regards to pre-meeting communications and documentation submittal is reported. The information that follows in

this section will basically be a transcript of questions asked and information shared during the initial interview.

BACKGROUND: Describes family matters, vocational issues, and an abbreviated life background.

EDUCATIONAL AND VOCATIONAL HISTORY: Educational and vocational historical details are

qualitatively listed. The individual’s current status including recent employment periods are detailed. Positions held

with specific employers, length of employment, duties performed, and other details on the individual’s educational

and vocational history are succinctly described. Information is also reported from the individual’s completed generic

application. Historical information about the individual’s learning capabilities, strengths and weaknesses in

academic areas, and working environments is brought to light.

EMPLOYER INFORMATION/VOCATIONAL TRAINING: If the individual recently separated from an

employer, or is currently employed, detailed information on the most recent job description, responsibilities,

accountabilities, training, and work performed is identified. First-hand accounts of the employer’s hiring practices

and needs are described. Additional analysis on vocational training, college coursework, and employment-related

data is supplemented as needed.

VOCATIONAL SKILLS ASSESSMENT: The individual’s knowledge base, good worker skills, functional skills,

and technical skills, along with abilities, aptitudes and other vocational skills and indicators are appraised. In

addition, accomplishments, volunteer work, avocational activities and hobbies bring additional skills to light.

TRANSFERABLE SKILLS ANALYSIS (TSA): Transferable skills are the accomplishments and understandings

an individual has acquired through jobs, school work, projects, parenting, hobbies, sports, volunteer work,

avocational pursuits and leisure activities that can be used in many other situations. Transferable skills can be

divided into three subsets: working with people; working with things; and working with information and data.

Transferable skills are critically analyzed and are cross transferred to numerous occupations. A bulleted list of skills

and qualifications are highlighted. This section is incredibly important and is useful when preparing target resumes.

VOLUNTEER BACKGROUND: A volunteer background is extremely advantageous when searching for a job. It

tells prospective employers that you care about other areas of life and are engaged in your community.






HOBBIES OR AVOCATIONAL ACTIVITIES: Hobbies, interests or pastimes, either current or from the past,

reveal insight into your interests are or what makes you enthusiastic outside of work. The activities are undertaken

for pleasure or relaxation, during one’s leisure time.

WORKER CHARACTERISTICS: The individual’s worker characteristics are scaled and reported. Worker

characteristics are the knowledge, skills and/or abilities necessary for the minimum acceptable performance of any

job duty (often relative to a position description). Results of self-appraisal and worksheet responses are delineated.

In addition, the concepts of employability, hireability and placeability are discussed.

EMPLOYABILITY: In simple categorical terms, employability is about being capable of getting and keeping

fulfilling work. The individual’s employability is discussed in detail. Temperament, personality, attitude,

motivational clues, and other employability characteristics are listed.

HIREABILITY: “Hireability” is a way of describing the likelihood that an individual may get hired for a job they

are physically and psychologically capable of performing. The individual’s presentation is critiqued, job searching

skills are assessed and other issues are discussed relative to the potential to attain employment.

PLACEABILITY: “Placeability” is partly about how in-demand the individual’s skills are and how well she or he

can interview. The concept of being placed in the workforce is described in direct relationship between the

individual and the professional counselor’s experience in the field of placement.

WORK AND CHARACTER REFERENCES: It is very important for a job seeker to have reliable work and

character references. References often provide what employers are looking to find out about a job candidate.

Employers look to find information on how someone previously performed on the job. Employers are also interested

in learning about positive personal and professional qualities and attributes of a good worker and/or member of

society.

HEALTH AND PHYSICAL CONDITIONS: The individual’s current health and physical conditions are

documented based on the interviewee’s subjectivity, response to questions, the interviewer’s observations, and

rehabilitation counseling methods. Implications and outcomes regarding the individuals: Quality of Life, Activities

of Daily Living, Locus of Control, Substance Abuse or Addiction, Smoking, Alcohol, Nutrition, Exercise, and

General Health along with Medication Management, Sleep Issues, Mental Health, and Alternative Therapies are

discussed. Physician findings and other professional healthcare providers or therapist comments are briefed.

FUNCTIONAL IMPAIRMENT/PHYSICAL AND/OR PSYCHOLOGICAL LIMITATIONS: Functional

limitations and beliefs of restrictions are documented on the interviewee’s subjectivity, responses to questions, the

interviewer’s observations and rehabilitation counseling methods. Functional Capacity Evaluation results are

explained. To explain impairment or limitation in lay person terms, comments from providers are offered.

PSYCHO-SOCIO-ECONOMIC FACTORS: The individual’s current socio-economic factors are documented.

Vehicle, residence, income, investments and other assets are listed. Current or past legal issues are addressed. The

individual’s sphere of influence and support system are identified. Values and social position relative to others is

described from the individual’s point of view.

WORKER STYLE PREFERENCES, VOCATIONAL INTERESTS AND PLANNING IDEAS: The

individual’s worker style preferences and vocational interests are identified. Work values and ethics are addressed.

Based upon the individual’s skills and experiences, aptitudes and natural talents, ideas relative to occupations, career

choices and various work environments are presented. In the event the individual has already considered future

work, that information is described and methods and procedures to plan and prepare for the goal are delineated.






Specific support services are described. What employers seek in applicants becomes matched with what is

established within the individual. Results of any career assessment or other testing instrument are revealed.

Vocational planning ideas are presented.

PERTINENT INFORMATION OR CONCERNS: Concerns regarding vocational self-concept, an assessment of

general readiness to return to work, and the individual’s perspective of the process of return to work are established.

An assessment is performed based on the individual’s perception of work tasks and physical limitations. Any other

concerns are presented, especially regarding the individual’s level of understanding of the placement process.

The individual’s job seeking abilities and level of job seeking performance is assessed. Areas of disinterest,

weakness, challenge, obstacle, limitation, restriction, and threat are analyzed. Any issue regarding motivation,

accommodation, and other factors or aspects relative to return to work that may interact with the placement process

is made. An impression of the need for vocational guidance and job seeking skills training is offered.

Detail on the individual’s knowledge of how to access employment opportunities in the labor market is made.

Specific examples of concern are presented. For example, when discussing positions, such as a file clerk, dietary aid,

restaurant crew worker, security guard, etc., or in performing light duty jobs at [a specific Employer Name] that the

individual excludes based on what he or she believes cannot physically be performed are detailed. The individual’s

predisposition and attitude towards work, along with any self-imposed limitations are described.

IMPRESSION/RESOURCES: A professional opinion in regards to the individual’s capacity to pursue an effective

job search campaign is offered. Additionally, a statement regarding the individual’s employment outlook is made.

Transferable skills and worker characteristics are matched with occupations that are in demand within the

individual’s labor market.

Local resources, research activities, and referrals to lead the individual to a number of avenues to explore options,

gather first-hand information, and gain experience regarding the world of work are provided. Notation that the

average job seeker would take full advantage of readily available job seeking resources to help with a successful

transition to suitable employment based on individualized decision making and informed choice is highlighted.

RECOMMENDATIONS: Based on the evaluator’s understanding of the individual’s goals, vocational counseling

services and placement programs may be recommended to include potential timeframes and outcomes. Additional

vocational analysis and specific referrals to assist the individual in any area of need is made available.

CONCLUSION: Conclusions on the bottom line of the individual’s potential for successful employment are

presented. Wage and occupational statistical information is referenced if applicable. Approval or recommendations

for specific future services (example: comprehensive placement services) are pre-scheduled for initiation, or

authorization is requested.

Sincerely,

Amy E. Botkin

Amy E. Botkin, MS, CRC, CLCP

Certified Rehabilitation Counselor / Certified Life Care Planner

Enclosures are submitted when they add value to the bottom line






PRESS RELEASE:

VOCATIONAL RESOURCES PLUS ANNOUNCES LIFE CARE PLANNING SERVICES

DES MOINES, IA – Wednesday October 26, 2011 – Vocational Resources Plus, LLC is launching a new service

to help families and other organizations plan for long term health care needs by matching necessary care with the

costs of providing that care.

The service, which produces an individual “Life Care Plan,” creates a guide to care that families can use to answer

questions regarding future medical care and costs associated with an individual's life-long healthcare needs.

And families aren’t the only ones to benefit from care planning that matches needs with costs. Insurance companies,

law firms and others also need to know what care is necessary, and how much it will cost.

“With all the changes we are experiencing in healthcare service delivery, life care planning benefits individuals and

companies involved in decision-making” says Vocational Resources Plus owner Amy Botkin. “We all want the most

and the best, but there are costs attached to everything a patient needs.”

“For example, litigated claims, when being addressed by a jury, need accurate information about care and costs to

help in determining fair and equitable claims, payments and settlements.”

Botkin, a Certified Rehabilitation Counselor and Drake graduate, has partnered with Sharon Hamilton, RN, CNLP,

to add Life Care Planning to the range of services already available through Vocational Resources Plus. Hamilton, a

Certified Nurse Life Care Planner, sees another benefit.

“Life Care Planning services incorporate vocational rehabilitation into the care planning process. With Amy's

expertise in job placement, combined with trends in assistive technology, we are well equipped to return the person

to gainful employment with an accountable cost structure. This helps the bottom line.”

Botkin has been providing vocational consultative services to the insurance and legal industry since 1999. Hamilton,

a Registered Nurse, has more than 20 years experience in home care case management, including eight years

focusing on persons with disabilities.

The life care planning process draws on three areas of practice: Worker Compensation, Personal Injury and Long

Term Disability. Vocational Resources Plus, LLC consults with people who want help to address the intricacies of

insurance claims in these areas.

# # #

For more information, please contact Amy E. Botkin at 515-282-7753 http://www.linkedin.com/in/amybotkin

www.lcpresourcesplus.com/

Vocational Resources Plus, owned by Amy E. Botkin, identified the need for services in Des Moines, a major

insurance center with nearly 60 life, health, and casualty companies.

http://www.linkedin.com/in/amybotkin

http://www.lcpresourcesplus.com/






**LIFE CARE PLANNING*

Another valued service Amy provides is **Life Care Planning**. Life Care Planning is performed by highly

qualified and certified health care professionals called into action when individuals and families experience

disability. A planner does this by preparing a Life Care Plan - a carefully constructed document that will assure the

individual receives quality healthcare services now and in the future, and associated costs are met.

What is a Life Care Plan? A life care plan is a dynamic document based upon published standards of practice,

comprehensive assessment, data analysis, and research, which provides an organized, concise plan for current and

future needs, with associated costs, for individuals who have experienced catastrophic injury or have chronic health

care needs. (IALCP - International Academy of Life Care Planners, 2003. Definition established during the 2000

Life Care Planning Summit.)

The life care planning process draws on three areas of practice: Worker Compensation, Personal Injury and Long

Term Disability. Life Care Planning Resources, Plus LLC in partnership with Vocational Resources Plus, LLC

consults with people who want help to address the intricacies of claims in these and other areas.

When Do You Need a Life Care Planner? A life care planner is useful in legal cases that include workers’

compensation, personal injury, medical malpractice, and marital dissolution. The most comprehensive setting is in

personal injury litigation and civil lawsuits. Attorneys, physicians, and insurance companies can hire life care

planners to research, analyze and develop life care plans for patients of any age with birth injury, brain injury, spinal

cord injury, stroke, trauma, burns, and other serious or chronic health conditions.

A Life Care Plan

• Addresses serious disability

• Establishes the goals and objectives for rehabilitation

• Discusses current and projected future requirements of care

• Summarizes medical, psychosocial, educational, vocational, and daily living needs

• Brings resources together

• Outlines a cost assessment of care and equipment needed over his or her lifetime

• Provides the patient/client/evaluee and family and case manager with an outline of future care

• Ultimately maximizes an individual’s independence

• Protects financial assets

Having Amy and her team serve as Life Care Planners is beneficial for individuals, families and funding

sources for many good reasons: Amy’s background is in rehabilitation counseling, health education, and nursing,

all valuable to educate everyone involved, including a jury and a judge, about the plan and its intention. A plan is

based on recommendations and information provided by the patient’s healthcare providers and community service

providers concerning the medical equipment, services, treatment, and healthy living needs necessary for the person

to work towards good health and independence. Simply put, “My job is to give a reasonable life care plan” ~ Amy

To prepare to design the plan, an initial meeting and follow-ups must take place, preferably if not mandatory, at the

individual’s home. Following the initial meeting, a preliminary report is submitted. This report has the following

main components to it:

Vocational Resources Plus LLC

P.O. Box 16005 Des Moines, Iowa 50316

Phone (515) 282-7753 eFax (914) 265-8709 [email protected]

PRELIMINARY NEEDS ASSESSMENT

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0ByJXOMHx4gR8YWYwMmZmNDYtNmY5YS00YTY0LTg3MWEtZGNlYzQ4MzQ2YzU5&hl=en_US






INDIVIDUAL’S NAME

DATE

INTRODUCTION

INITIAL INTERVIEW

BACKGROUND / FAMILY DYNAMICS

HOME ENVIRONMENT / DURABLE MEDICAL EQUIPMENT

ACTIVITIES OF DAILY LIVING

COMMUNITY INVOLVEMENT / RECREATION / SUPPORT SYSTEM

ECONOMIC FACTORS / FINANCIAL MATTERS

ABBREVIATED MEDICAL HISTORY

HEALTH CONDITION / PHYSICAL LIMITATIONS / SUBJECTIVE COMPLAINTS

HEALTHCARE PROVIDERS / MEDICATIONS / HEALTHCARE SUPPLIES

RECOMMENDATIONS

Sincerely,

Amy E. Botkin


Certified Rehabilitation Consultant & Certified Life Care Planner

Following is a sample for informational purposes only outlining what a Life Care Plan (LCP) report may look like:

Please note this is an extremely edited and shortened life care plan! Detail on pertinent findings, research, resources

and information instrumental in the creation of the LCP is provided. The plan can be displayed using computer

technology.

LIFE CARE PLAN

Prepared for

INDIVIDUAL’S NAME

Primary Disabilities: Listed Out

Prepared by: Amy E. Botkin, MS, CRC, CLCP

Life Care Planning Resources Plus LLC

***

LIFE CARE PLANNING

Thank you for the opportunity to assist with the development of Individual’s Life Care Plan. A Life Care Plan (LCP)

is a road map of care used to answer questions regarding future medical care and costs associated with an

individual's life long healthcare needs.

The goals of a comprehensive LCP are to: provide the clinical and physical environment for optimal recovery;

improve and maintain the clinical state of the patient; prevent secondary complications; provide support for the

family; and to help to develop a disability management program aimed at minimizing the long-term care needs of

the individual.

Preparing a plan involves gathering information and data from several sources. I visited with Individual in person

and on the phone, reviewed the medical records and professional reports, communicated with members of her

healthcare team, contacted community service providers, and performed research prior to preparing this plan.






This plan contains information that is recommended to maximize Individual’s health and functioning. Her

willingness to be responsible toward maximizing her health and well-being, along with her healthcare professionals’

willingness to keep an open mindset to any given situation is crucial to the enhancement and facilitation of her

health goals.

INTRODUCTION: Individual is a XX year old person who sustained major trauma…..and the story unfolds…

SUMMARY: The history of the individual’s healthcare to date is summarized.

CONCLUSION

Based on my analyses of the individual’s condition and the information gathered, my professional opinion is stated.

In this plan, all recommendations are projected only. There are options in this plan, offered to provide choices,

requiring decision making from Individual. No collateral sources (i.e., Medicaid, State Funding, County Services)

have been taken into consideration. An economist will be needed to determine the total costs and growth trend.

TABLE OF CONTENTS (Depending on Needs, a Table of Contents Lists All, for eg:)

A. PROFESSIONAL SERVICES

B. VOCATIONAL REHABILIATION

B. COUNSELING

C. THERAPY

D. MEDICATIONS

E. MEDICAL EQUIPMENT AND SUPPLIES

F. COMMUNITY SERVICES

G. FUTURE LIVING ARRANGEMENTS

H. SPECIAL ALLOWANCES

I. POTENTIAL FUTURE MEDICAL CARE NEEDS AND HEALTH RISKS (PROVIDED FOR

INFORMATIONAL PURPOSES ONLY)

PROFESSIONAL SERVICES

Description /

Provider

Age - Year Frequency/

Replacement

Purpose Cost Range Recommended

by

Primary Care

Physician

(PCP)

Beginning:

51 - 2013

Ending: Life

Expectancy

Once a year,

along with

visits when

necessary.

To monitor for changes in

physical and psychological

condition as related to health

and disability.

$0 - $0 per

appointment

Per Year:

$0 - $0

Doctor Name

VOCATIONAL REHABILIATION

Description /

Provider


Replacement


by

Certified

Rehabilitation

Counselor

(CRC)

Beginning:

XX - 2013

One time. To prepare a vocational

evaluation and/or loss of

wages or earnings capacity

report.

$0 - $0 per

evaluation

Per Year:

$0 - $0

Doctor Name

COUNSELING

Description /

Provider


Replacement

Purpose Cost Recommended

by

Mental Health

Counseling /

Beginning:

Age XX -

Monthly Individual therapy.

Per Unit:

$0 - $0

Doctor Name






Clinician 2013

Ending: Age

XX - 2015

Monthly

Per Year:

$0 - $0

THERAPY

Description Age - Year Frequency/

Replacement


by

Occupational

Therapy

Beginning:

Age XX –

2013

Ending: Age

XX –2015

1 x year for

5-10 weeks

(5-10

sessions)

Annually for 2 years

and…explanation

$0 - $0 per

session

Per Year

$0 - $0

Independent

Living Services

Supervisor

MEDICATIONS

Individual is is currently prescribed # medications. Please see the document titled MEDICATION LIST WITH

DRUG INFORMATION for complete detail on purpose, side effects, and what to watch for when taking the

medicine. This list represents her current regimen and is certainly subject to change with aging and change in status.

This does not take into consideration any medications such as antibiotics to treat infections.

PRESCRIPTION MEDICATIONS

Routine

Pharmaceuticals

(Prescribed)

Beginning

& Ending

Year

Frequency/

Replacement

Purpose

Describe

Cost

MEDICAL EQUIPMENT AND SUPPLIES

Description /

Provider


Replacement


by

Motorized

Wheelchair

Beginning:

Age XX -

2013

Ending:

Life

Expectancy

Every 5 – 10

years

Mobility Per Unit:

$0 - $0

Per Year:

Prorate

Doctor Name

COMMUNITY SERVICES

Item/Service Age Year Frequency/

Replacement


by

Independent

Living Case

Aid

Beginning:

2013

Ending:

Life

Expectancy

Weekly time:

2-5 hours per

week.

To assist with routine care

and activities of daily

living,

$00 - $00 per

week

Per Year:

$00 - $00

Social Worker

FUTURE LIVING ARRANGEMENTS

OPTION A: NEW HOME ALLOWANCE

Item/Service Age Year Frequency/ Purpose Cost Range






Replacement

An Accessible Home XX

1 x

Barrier free living, safety,

accessibility. Closer to

emergency services.

$95,000 -

$145,000

Note: Estimate only: $200,000-$250,000 for new home - $105,000 sale price for existing home = allowance of

$95,000 - $145,000.

OPTION B: ASSISTED LIVING


Replacement

Purpose Cost Range

Assisted Living

Community

Undetermined Annually Future

Living

Arrangement

Per Year:

$14,400 -

$34,029

OPTION C: NURSING HOME


Replacement

Purpose Cost Range

Nursing Home Undetermined Annually Future

Living

Arrangement

Per Year:

$54,385 -

$58,035

SPECIAL ALLOWANCE

Description Age - Year Frequency/

Replacement

Purpose Allowance Recommended

by

Respite

Services

Beginning:

2013

Ending:

Life

Expectancy

Per Month To provide short-term,

temporary relief to those who

are caring for family members.

Per Unit:

$0

Per Year:

$0

Social Worker

POTENTIAL FUTURE MEDICAL CARE NEEDS AND HEALTH RISKS (PROVIDED FOR

INFORMATIONAL PURPOSES ONLY)

Potential future medical needs and mental health risks are not costed out because it is not possible to estimate

frequency, intensity, duration and treatment costs. A description of what may be needed and it’s is offered and who

recommended it.

Respectfully prepared and submitted by,

Amy E. Botkin


Certified Rehabilitation Counselor

Certified Life Care Planner






RESUME: Amy E. Botkin, MS, CRC, CLCP

Please contact Amy at 515-282-7753 or [email protected] for her most recent resume or you can download

a copy of one at lcpresourcesplus.com/

Amy is currently studying Forensics Rehabilitation Counseling through The George Washington University.

The program is uniquely designed to provide focused insight in how

forensic experts function within the legal system.

mailto:[email protected]

http://lcpresourcesplus.com/

Lawyers' Mental Health and Depression Issues

2:00 p.m.-3:00 p.m.

Presented byHugh Grady

Director Iowa Lawyers Assistance Program

625 East Court AveDes Moines, Iowa 50309

Phone: 800-243-1533Email: [email protected]

Iowalap.org



UNDERSTANDING DEPRESSION

Goals of Presentation

Common types of Depression

Depression in the Legal Profession

Causes and symptoms

Relationship to alcohol and substance abuse

Treatment and recovery

Helping a friend or colleague who is depressed

WHO GETS DEPRESSED? ANYONE-AT ANY AGE

CHILDHOOD DEPRESSION EFFECTS 1 IN 33 CHILDREN

1 IN 8 TEENS SUFFER FROM ADOLESCENT DEPRESSION WHICH IS LINKED TO A HIGHER RATE OF SUICIDE

8-10% OF ADULTS OVER 18

WHO GET’S DEPRESSED? Women have a higher rate then men due to

hormonal differences, post-partum, menopause

Depression in men is often masked by hostility, anger, alcohol and drug abuse

Women seek treatment twice the rate of men,less stigma, less association with being “weak”

Approximately six million seniors experience “late life depression” due to retirement, loss, illness, loss of independence and aging

PREVELANCE OF DEPRESSIONNATIONAL INSTITUTES OF HEALTH

8-9.5% (20.9 MILLION) ADULTS

WORLD HEALTH ORGANIZATION“ONE OF THE MOST DISABLING DISORDERS IN THE WORLD AFFECTING 25% OF WOMEN AND 10% OF MEN (340 MILLION) ADULTS WORLDWIDE”

“BY 2020, DEPRESSION WILL BE THE SECOND LEADING CAUSE OF DISABILITY AFTER HEART DISEASE”

WHAT CAUSES DEPRESSION? NO SINGLE CAUSE

MULPTIPLE FACTORS:BRAIN FUNCTIOING-IMBALANCE IN THE BRAIN’S NEUROTRANSMITTERS: SERATONIN, NOREPINEFRINE AND DOPAMINE

MOOD REGULATORS-DEFICENCY CAUSES DEPRESSION-TOO MUCH CAUSES MANIA

CAUSES GENETIC VULNERABILITY: FAMILY

HISTORY

STRESSORS: WORK, FAMILY, SOCIAL,PERSONALITY (PERFECTIONISM, LOW SELF-ESTEEM),LOSS, TRAUMA, ILLNESS, MEDICATIONS,ALCOHOL/SUSTANCE ABUSE

PREVELANCE IN THE PROFESSION STATISTICS (AALS)

Depression among law students:10% beginning of first semester32% end of 1st year34% after 2nd year40% after 3rd year

Stress among law students is 96%, compared to 70% in medical students and 43% in graduate students pursuing other fields.

.

DEPRESSION IN THE PROFESSION Johns Hopkins study found that lawyers are 3.5x

more likely to develop depression than 104 other professional groups

Chronic stress can trigger the onset of clinical depression.

15% of people with clinical depression commit suicide.

Lawyers rank 5th in incidence of suicide by occupation.

WHAT IS DEPRESSION? MOOD DISORDER THAT CAN RANGE FROM MILD,

TEMPORARY EPISODES OF SADNESS

TO A SEVERE AND PERISITANT STATE THAT IS:>NOT SOMETHING YOU CAN “SNAP OUT OF”>NOT A SIGN OF WEAKNESS>NOT A CONDITION TO BE IGNORED>NOT A CONDITION THAT GOES AWAY BY

ITSELF

CLINICAL/MAJOR DEPRESSION

CLINICAL/MAJOR DEPRESSIONA SERIOUS ILLNESSA “WHOLE BODY” ILLNESSAFFECTS MIND, BODY & SPIRIT

THINKING FEELINGS BEHAVIOR PHYSICAL WELL-BEING

DEPRESSION AFFECTS EACH PERSON DIFFERENTLY, GENETICS, AGE, GENDER AND CULTURAL BACKROUND ARE ALL FACTORS.

DIAGNOSING MAJOR DEPRESSIONDSM IV-R

5 0R M0RE SYMPTOMS PERSIST FOR AT LEAST 2 WEEKS

DEPRESSED MOOD MOST OF THE DAY, EVERY DAY LOSS OF INTEREST OR PLEASURE IN MOST ACTIVITES INSOMNIA OR HYPERSOMNIA SIGNIFICANT WEIGHT LOSS OR GAIN PSYCHOMOTOR AGITATION (RESTLESSNESS) IRRITABILITY FATIGUE OR LOSS OF ENERGY FEELINGS OF WORTHLESS OR EXCESSIVE GUILT LOSS OF CONCENTRATION AND INDECISIVENESS RECURRING THOUGHTS OF SUICIDE OR DEATH

CRITERIA FOR DIAGNOSIS R/O MEDICAL CONDITION R/O SIDE EFFECTS OF DRUGS R/O ALCOHOL/SUBSTANCE ABUSE

SYMPTOMS CAUSE SIGNIFICANT DISTRESS AND IMPAIRMENT

LAWYERS-AFFECT WORK PRODUCT, ABILITY TO FOCUS, MEET DEADLINES, COMMUNICATE WITH CLIENTS

BIPOLAR DISORDER MANIC DEPRESSIVE DISORDER

CYCLING MOOD CHANGES BETWEEN DEPRESSION AND MANIA

CHANGES ARE USUALLY GRADUAL

EPISODES LAST SEVERAL WEEKS

SYMPTOMS OF MANIA

ABNORMAL ELATION GRANDIOSE IDEAS RACING THOUGHTS HYPERACTIVITY IMPULSIVITY INAPPROPRIATE SOCIAL BEHAVIOR DECREASED NEED FOR SLEEP EXCESSIVE IRRITABILITY

DYSTHYMIA

LONG-TERM CHRONIC SYMPTOMS THAT ARE LESS DISABLING THAN MAJOR DEPRESSION

CAN ALSO IMPAIR FUNCTIONING AND AFFECT GENERAL WELL-BEING

SYMPTOMS ARE SAME AS MAJOR DEPRESSION BUT GENERALLY LESS SEVERE

SYMPTOMS HAVE PERSISTED FOR LONGER PERIODS OF TIME THAN MAJOR DEPRESSION

TENDENCY TOWARD NEGATIVE THINKING, PERSON APPEARS UNHAPPY

TREATED WITH MEDICATION AND THERAPY

ADDITIONAL RISK FACTORS ISOLATED, LACK OF SOCIAL SUPPORT HISTORY OF DEPRESSION-ONE EPISODE OF

MAJOR DEPRESSION, 50% CHANCE OF A SECOND EPISODE

DISSATISFACTION WITH WORK, CAREER FINANCIAL PROBLEMS TRAUMA, JOB LOSS, OTHER STRESSFUL LIFE

EVENTS SERIOUS ILLNESS

DEPRESSION, ALCOHOL AND DRUG ABUSE High rate of co-morbidity

Untreated depression can result in “self-medicating” with alcohol and drugs

Alcohol and drug abuse affects brain functions that can result in depression

Drugs classified as CNS depressants-alcohol, barbiturates and benzodiazepines

DEPRESSANT DRUGS Barbituates-phenobarbital, seconal

Benzodiazepines-librium, valium, xanax, ativan

Alcohol and Marijuana-slow brain functioning and diminish cognitive abilities

Cocaine elevates a person’s mood then they crash into depression

“SELF-MEDICATING” DEPRESSION Natural instinct to fight painful feelings

Use of drugs-alcohol, pot, nicotine, caffeine

Compulsive behaviors-food (eating disorders), shopping, gambling, shop lifting, sexual addiction, pornography,workaholism…..

TREATMENT FOR DEPRESSION According to the American Psychological

Association (APA), treatment for depression that includes both medication and psychotherapy is best.

Medication alleviates the symptoms

Therapy provides emotional support, problem-solving techniques, examining and changing thinking styles, looking at behavior, teaching social skills, meeting basic needs

RECOVERY FROM DEPRESSION Stick to your treatment plan Educate yourself Pay attention to signs and symptoms Self-care:

>eating healthy, getting exercise>plenty of rest >stress management/relaxation techniques>support network>activities>reasonable goals>increase resilience>DON’T GIVE UP

HELPING SOMEONE WHO IS DEPRESSED “DOING NOTHING IS NOT AN OPTION” SAY SOMETHING! ACKNOWLEDGE YOUR CONCERN SHARE YOUR OBSERVATIONS AND CHANGES IN THEIR

BEHAVIOR LISTEN WITH EMPATHY BE AVAILABLE BE PATIENT ENCOURAGE THEM TO SEEK PROFESSIONAL HELP CONTACT LAP THREAT OF SUICIDE-CALL 911

LAWYER ASSISTANCE PROGRAM FREE, CONFIDENTIAL HELP FOR LAWYERS,

JUDGES, LAW STUDENTS AND FAMILY MEMBERS MENTAL HEALTH, DEPRESSION, ANXIETY,

STRESS, ALCOHOL & DRUGS, PERSONAL, FAMILY, MARITAL, JOB OR CAREER, CHARACTER & FITNESS, DISCIPLINARY, SUSPENDED/DISBARRED SEEKING READMISSION

EVALUATION, REFERRAL, EDUCATION, INTERVENTION, SUPPORTIVE COUNSELING, PEER SUPPORT, MONITORING

Unraveling the Mysteries of Social Security Which Family Lawyers Need to Know

3:15 p.m.-4:00 p.m.

Presented byElizabeth Norris Joe BasqueIowa Legal Aid Iowa Legal Aid1700 S. 1st Ave., Suite 10 532 First Avenue #300Iowa City, Iowa 52240 Council Bluffs, IA 51503Phone: (319) 351-6570 Phone: (712) 328-8265



1

UNRAVELING THE MYSTERIES OF SOCIAL SECURITY WHICH

FAMILY LAW LAWYERS NEED TO KNOW

Joe Basque & Elizabeth Norris

2013 Family Law Seminar

October 25, 2013

I. Background

You recently negotiated a consent divorce decree for your disabled client. From now on

she will begin receiving $750 each month in alimony payments, plus whatever disability

payments she is now eligible for. Suddenly she calls you to tell you that she applied for

Supplemental Security Income (SSI) for her disability, but was told that because of her alimony

she is ineligible for SSI benefits. The alimony also makes her ineligible for Medicaid benefits as

well. If it wasn't for the alimony, she would have been eligible for $710 each month in SSI as

well as Medicaid to cover her medical expenses. She is pretty upset. Could you have avoided

this? For most family law attorneys, when a client walks through the door wanting to file for a

divorce, the thought of how the final decree might impact upon their eligibility for disability

benefits probably does not leap to mind. However, clients who are receiving, or may become

eligible for, Supplemental Security Income and Medicaid benefits may be profoundly affected by

support payments and how marital property is divided. You ignore those at your peril.

II. Program Basics: Social Security, SSI, Medicaid and Medicare

If you do not know the difference between these programs, you are not alone. Disabled

and retired individuals can be eligible for some or all of these programs, as can their children and

spouses. Some are income and resource sensitive. Some are not. If you know which programs

may be affected by the divorce decree and which are not, you will be way ahead of the game.

A. Social Security Disability

The Social Security Disability Act was passed in 1956 to provide assistance to disabled

individuals who had paid into the Social Security system. Social Security Disability benefits are

available to any individual who is insured for disability insurance benefits (DIB or “Title II”

benefits), has not obtained retirement age, has filed an application for DIB, and is found to be

under a disability as defined by the act.1 As an individual works, a portion of their earnings are

normally paid into the Social Security system. If an individual has paid enough money into the

system over a sufficiently lengthy time, they become qualified to receive DIB if they apply and

are found to be disabled by SSA. Regulations regarding achieving insured status under this act

are located at 20 C.F.R. § 404 Subpart B. Every individual who is fully insured under the act is

eligible for a primary insurance amount (PIA). The PIA is the monthly benefit amount that a

person is entitled to at any given time. The more that a person pays into the Social Security

1 42 U.S.C. § 423(a); 20 C.F.R. § 404.315(a).

2

system (in other words, the more that is deducted from your wages as a Social Security tax), the

higher your PIA. The methods for computing the PIAs are located at 20 C.F.R. § 404 Part C.

Your own PIA is available from Social Security at any time upon request. As your PIA

increases, so does the maximum family benefit available to other members of your family in the

event of your disability or death. You can be eligible for SSD up to 12 months before you file

your application for benefits.2

Title II benefits can also be available for spouses,3 children,

4 and parents of disabled

individuals.5

1. Spouses

If a claimant is disabled (or deceased), the claimant’s spouse may be eligible for Title II

benefits on the claimant’s account even if the spouse has no work history. Regulations regarding

spousal benefits are located at 20 C.F.R. § 404.330 et. seq. Under some circumstances, a

divorced spouse can also be eligible to draw spousal benefits.6 Either way, in order to be a

spouse or a former spouse, one must have been married. With the recent demise of the federal

Defense of Marriage Act (DOMA)7 this rule will also extend to same sex couples as well.

Regulations regarding whether a couple is (or was) married for Title II purposes are located at

SSA POMS GN 00305.005. The validity of a marriage is ordinarily determined by the law of

the place where it occurred.8 Under Social Security regulations, marriages will be recognized if

they are valid ceremonial marriages under state law, a common law marriage as recognized

under state law, a void marriage under which the individual would still be eligible to inherit

under state intestate laws, or under a few other rare exceptions.9

2. Children

Children are also eligible to draw off of a claimant’s Title II benefits. Regulations

regarding children’s benefits are located at 20 C.F.R. § 404.350 et. seq. “Child” is defined for

Social Security benefit purposes at 20 C.F.R. §§ 404.355-404.357. The US Supreme Court has

declined to include children conceived through in vitro fertilization in this definition.10

B. Supplemental Security Income (SSI)

The Supplemental Security Income (SSI or Title XVI benefit) program was enacted by

Congress in 1972 to assist individuals who have obtained age 65 or are blind or disabled by

2 20 C.F.R. § 404.315(a)(3).

3 20 C.F.R. § 404.330 et. seq.

4 20 C.F.R. § 404.350 et. seq.

5 20 C.F.R. § 404.370 et. seq.

6 20 C.F.R. § 404.331.

7 United States v. Windsor, 570 U.S. ___ (2013).

8 POMS GN 00305.005.B.1.

9 POMS GN 00305.005.020-00305.005.095.

10 Astrue v. Capato ex rel. B.N.C., 566 U.S. ____; 132 S.Ct. 2021, 80 USLW 4369 (2012).

3

setting a guaranteed minimum income level for such persons.11

Individuals are eligible for SSI

benefits if they are elderly, blind or disabled and meet the program’s income and resource

eligibility requirements.12

Individuals who are age 65 or over are eligible for SSI benefits upon

application and proof of age.13

Other individuals must prove that they are blind or disabled, as

defined by Social Security.14

Unlike Title II benefits, SSI benefits are income and resource

sensitive. Unlike Title II benefits, there can be no retroactive eligibility for SSI benefits, and

children and spouses are not eligible for any type of benefit based on the claimant’s eligibility for

SSI.

The SSI monthly benefit for 2013 is $710.00 for an individual and $1,066.00 for a

couple.15

The SSI monthly benefit changes annually based on cost of living increases.

Individuals can be eligible for both Title II and Title XVI benefits. Because the purpose of SSI is

to ensure a minimum level of income for the elderly, blind and disabled, individuals receiving

Title II benefits, but whose PIA is below this minimum amount, are also entitled to SSI. For

example, if an individual was insured for and received Disability Insurance benefits totaling

$300.00 per month, they could also be eligible for an SSI payment to bring them up over the SSI

monthly benefit amount. Unless it is clear that an individual will only be eligible to receive

benefits from one program, individuals claiming disability should be encouraged to concurrently

file DIB and SSI applications.

C. Medicaid

Medicaid (or “Title XIX”) benefits were created through 1965 amendments to the Social

Security Act as a medical entitlement program to help states pay medical coverage for low

income families, disabled, and some other categorically related individuals (such as pregnant

women). Medicaid covers up to 100% of covered medical services, including medications,

hospitalizations, and physician’s services. Unlike Medicare, it also covers long term nursing

care expenses. For individuals who are also covered by Medicare, Medicaid can cover the 20%

of medical expenses not covered by Medicare. In Iowa, an application for SSI benefits

automatically constitutes an application for Medicaid benefits.16

Because the Iowa Department

of Human Services adopts the disability determinations of the Social Security Administration, a

finding of disability by Social Security will be considered a finding of disability for Medicaid

purposes as well.17

Because Iowa participates in optional Medicaid benefits for the categorically

needy, Iowa Code § 249A.3(2)(d) (known as the Medically Needy Program), a finding of

disability by Social Security should qualify the claimant for Medically Needy benefits if their

Social Security disability amount exceeds the maximum income amount for Medicaid

11

Sullivan v. Zebley, 493 U.S. 521, 524, 110 S.Ct. 885, 888, 107 L.Ed 2d 967 (1990). 12

42 U.S.C. § 1382(a). 13

20 C.F.R. §§ 416.202(a)(1), 416.801. 14

20 C.F.R. §§ 416.202(a)(2)-(3). 15

http://www.ssa.gov/OACT/COLA/SSI.html 16

Armstrong v. Palmer, 879 F.2d 437 (8th Cir. 1989). 17

Id.

4

eligibility.18

Medicaid benefits could be awarded up to three months prior to the date of the

application for Social Security benefits.19

D. Medicare

Individuals receiving Social Security Retirement benefits at age 65 are automatically

eligible for Medicare.20

Claimants who have been receiving SSI, SSD, or widows insurance

benefits for 24 months are eligible for Medicare in month 25 and prospectively.21

Months of a

previous period of entitlement or deemed entitlement to disability benefits count toward the 25

month requirement.22

Medicare covers part (generally 80%) of the cost of hospitalization and

physician’s services.

III. SSI and Medicaid Eligibility

As discussed above, Supplemental Security Income and Medicaid benefits are income

and resource sensitive. Iowa Medicaid eligibility is based on SSI eligibility rules and

regulations.

A. Income

Regulations regarding SSI income eligibility begin at 20 C.F.R. § 416.1100 and at Social

Security POMS SI 00800. Income is defined as anything an individual receives in cash or in

kind that can be used to meet needs for clothing and shelter.23

Income is counted on a monthly

basis. Generally, the more income you receive the smaller the amount of benefit you will get.24

20 C.F.R. § 416.1111 explains how earned income is counted for SSI eligibility purposes.

Income is counted as income in the month received, and, if retained, as a resource in the

following month.25

The first $20 of income is generally excluded for SSI eligibility purposes.26

Social Security generally excludes the first $65 of wages and half of remaining non-exempt

wages for SSI income eligibility purposes.27

The $20 and $65 earned income exclusions apply

only once per couple, even if both disabled couples have earned income.28

Almost all income is countable. However, examples of income that are not counted by

SSI include:29

18

See also 441 Iowa Admin. Code §§ 75.20(2), 86.3(6). 19

42 U.S.C. § 1396a(a)(34), 42 C.F.R. § 435.914. 20

42 U.S.C. § 426(a). 21

42 U.S.C. § 426(b), 42 C.F.R. § 406.12(a). 22

42 C.F.R. § 406.12(b). 23

20 C.F.R. § 416.1102. 24

20 C.F.R. § 416.1100. 25

20 C.F.R. § 416.1207(d); SSA POMS SI 00810.010. 26

SSA POMS SI 00810.420. 27

SSA POMS SI 00820.500.A.3. 28

SSA POMS SI 00820.500.A.5. 29

20 C.F.R. §§ 416.1112, 416.1124.

5

medical care and services given free of charge or paid directly to the provider by

someone else;

cash or in kind assistance by a government program whose purpose is to provide

Social Services and vocational rehabilitation, such as Veterans Aid and Attendance;

receipts from the sale, exchange, or replacement of a resource;30

income tax refunds;

payments made under a credit life or credit disability insurance policy on your behalf;

proceeds from a loan;

replacement of lost income;

weatherization assistance;

grants, scholarships, or fellowships used in paying tuition, fees, or other necessary

education expenses;

payments for providing foster care;

any interest earned on excluded burial funds;

food stamps;

the value of any assistance paid under a variety of Federal Housing Programs;

need-based assistance by any state or local governmental program

A list of partial and totally excluded unearned income is located at Social Security POMS

SI 00830.099.

Countable income is divided into 3 kinds, earned income, unearned income, and in-kind

support and maintenance.

1. Earned Income

Earned income includes wages, commissions, bonuses, severance pay, and in-kind items,

such as food, clothing, shelter, or other items provided instead of cash.31

2. Unearned Income

Countable unearned income includes annuities, pensions, alimony and support payments,

dividends and interest, rents, interest from bank accounts, death benefits, prizes and awards,

gifts, and inheritances. It may include monthly proceeds from a tort settlement.32

20 C.F.R. §

416.1123 explains how unearned income is counted.

Note that if a portion of SSI is withheld due to a previous benefit overpayment, that

amount is still counted as unearned income.33

Likewise, amounts garnished from unearned

income are still counted as unearned income against the individual.34

30

20 C.F.R. § 416.1151. 31

20 C.F.R. § 416.1110. 32

LaBeaux for LaBeaux v. Sullivan, 760 F.Supp. 761, 765 (N.D. Iowa 1991); 20 C.F.R. §

416.1121. 33

20 C.F.R. § 416.1123(b)(1).

6

Child support payments (including arrearage payments) made on behalf of an SSI child

(as defined in SSA POMS SI 00501.010) are unearned income to the child. One-third of the

amount of a child support payment made to or for an eligible child by an absent parent is

excluded.35

The child support payment made on behalf of a child is not counted against a

custodial parent receiving SSI. If the child support is for back benefits owed to an adult child,

and the benefit is turned over to the adult child, or paid directly to the adult child, it also does not

count as unearned income for the parent.36

Any amount of that payment that the parent receives

and does not give to the adult child is income to the parent.37

Any amount of that payment that

the parent gives to the adult child is income to the adult child in the month given, not income to

the parent. The one third rule does not apply.38

3. In-kind Income

In kind support and maintenance is defined as “any food or shelter that is given to you or

that you receive because someone else pays for it.”39

Shelter includes “room, rent, mortgage

payments, real property taxes, heating fuel, gas, electricity, water, sewerage, and garbage

collection services.”40

In-kind income can be earned or unearned.41

In kind items are typically

valued at their current market value. Id. In the case of food and shelter, Social Security will

typically assume the dollar value to be the value of 1/3 of the SSI rate.42

Regulations describing

how Social Security will value various forms of in-kind support and maintenance for individuals

and couples is located at 20 C.F.R. §§ 416.1131 through 416.1148. Generally, if a recipient is

living in the household of another and receives both food and shelter from them, instead of

determining the actual dollar value of the income, SSA will count one-third of the federal benefit

rate as additional income. This is known as the one-third reduction rule.43

If the claimant only

receives in kind support for either food or shelter, but not both, Social Security applies the

“presumed value rule.” Instead of determining the actual dollar value, SSA presumes that the in

kind support is worth one-third the SSI rate plus $20.44

The individual has the right to prove the

value of their in kind support is less than the amount that would be presumed under the one-third

reduction rule.45

Remember that if the one-third reduction rule applies, SSA does not count any

other in-kind support and maintenance the individual may receive.46

34

20 C.F.R. § 416.1123(b)(2). 35

POMS SI 00830.420(B)(1). 36

POMS SI 00830.420(C)(2). 37

POMS SI 00830.420(C)(2). 38

POMS SI 00830.420(C)(2). 39

20 C.F.R. 416.1130(b). Note that in 2005 the regulation was revised to exclude

“clothing” from the definition. 40

20 C.F.R. 416.1130(b). 41

20 C.F.R. § 416.1130(a). 42

20 C.F.R. § 416.1131. 43

20 C.F.R. § 416.1131(a). 44

20 C.F.R. § 416.1140(a)(1); POMS SI 00835.300. 45

20 C.F.R. § 416.1140(a)(2); POMS SI 00835.300.C.3. 46

20 C.F.R. § 416.1131(c).

7

B. Resources

Social Security has established SSI resource eligibility limits for individuals and couples.

The resource limit for an individual with no eligible spouse is $2,000.00 and for an individual

with an eligible spouse is $3,000.00.47

Resource determinations are made as of the first moment

of the month.48

A resource determination is based on what assets an individual has, what their

values are, and whether or not they are excluded as of the first moment of each month.49

1. Excluded Resources

A home is not counted as a resource regardless of its value.50

“Home” is defined at 20

C.F.R. §416.1212(a). If an individual moves out of the house with no intent to return, the house

becomes a countable resource.51

However, if an individual leaves the home to live in an

institution, the home is still considered to be the individual’s principal place of residence,

irrespective of the individual’s intent to return, as long as a spouse or dependent relative of the

eligible individual continue to live there.52

If an individual moves out of his or her home without the intent to return, but is fleeing

the home as a victim of domestic abuse, Social Security will not count the home as a resource in

determining the individual's eligibility to receive, or continue to receive, SSI payments. In that

situation, we will consider the home to be the individual's principal place of residence until such

time as the individual establishes a new principal place of residence or otherwise takes action

rendering the home no longer excludable.53

Once a house is no longer exempt, Social Security can consider the individual’s equity in

the former home as a countable resource for the first day of the month following the month that it

is no longer the principal place of residence.54

If the house is sold, the proceeds from the sale of

the home will be excluded from resources to the extent that they are intended to be used, and are

in fact used, to purchase another home within 3 months after date of receipt of the proceeds.55

An individual can continue to receive SSI payments conditioned on the sale of non-exempt real

property if they agree in writing to dispose of the property in 9 months.56

This conditional period

ends if the property is sold, if the individual stops making reasonable efforts to sell the property,

if the individual cancels the written agreement with SSA, if the countable non-exempt resources

47

20 C.F.R. § 416.1205. 48

20 C.F.R. § 416.1207. 49

Id. 50

20 C.F.R. § 416.1212(b). 51

20 C.F.R. § 416.1212(c). 52

Id. 53

20 C.F.R. § 416.1212(d). 54

Id. 55

20 C.F.R. § 416.1212(d). 56

20 C.F.R. § 416.1242(a).

8

fall below the resource limit, or if the 9 month disposal period ends.57

If the house cannot be

sold in the 9 month period and beyond, it cannot be counted as a non-exempt resource if the

individual’s reasonable efforts to see the property have been unsuccessful.58

If it is determined

that reasonable efforts to sell have been unsuccessful, further SSI payments will not be

conditioned on the disposition of the property and only the benefits paid during the 9 month

disposal period will be subject to recovery. In order to continue to be eligible for SSI payments,

the individual must continue making reasonable efforts to sell the property.59

Reasonable efforts

to sell the property are defined at 20 C.F.R. § 416.1245(b)(3). Essentially, the individual must

list the property with an agent, advertise in appropriate local media, and accept any reasonable

offer.60

Income-producing property located on the home property is addressed at 20 C.F.R. §§

416.1220 through 416.1224.

One automobile, regardless of its value, is excluded as a resource if it is used for

transportation of the individual or members of the individual’s household.61

Other automobiles

are counted against the resource limit to the extent of the individual’s equity.62

In 2005 Social Security eliminated their $2000 household goods resource limit. Social

Security no longer counts household goods as a resource if they are:

(i) Items of personal property, found in or near the home, that are used on a regular basis;

or

(ii) Items needed by the householder for maintenance, use and occupancy of the premises

as a home.63

Such items include but are not limited to: Furniture, appliances, electronic equipment such as

personal computers and television sets, carpets, cooking and eating utensils, and dishes.64

Certain personal effects are not counted at all, such as items of personal property ordinarily worn

or carried by the individual.65

Other exempt items include, but are not limited to: personal

jewelry including wedding and engagement rings, personal care items, prosthetic devices, and

educational or recreational items such as books or musical instruments.66

Other excluded resources include property which is essential to the means of self support,

some life insurance policies, disaster relief assistance, burial spaces and certain funds for burial

expenses, retroactive SSD and SSI payments for up to nine months following receipt, housing

assistance, federal income tax refunds, payments received as compensation for expenses incurred

57

20 C.F.R. § 416.1245(b). 58

20 C.F.R. § 416.1245(b). 59

20 C.F.R. § 416.1245(b). 60

20 C.F.R. § 416.1245(b)(3)(ii). 61

20 C.F.R. § 416.1218(b)(1). 62

20 C.F.R. § 416.1218(b)(3). 63

20 C.F.R. § 416.1216(a)(1). 64

20 C.F.R. § 416.1216(a)(2). 65

20 C.F.R. § 416.1216(b)(1). 66

20 C.F.R. § 416.1216(b)(1).

9

or losses suffered as a result of a crime, and dedicated financial institution accounts.67

Social

Security has an extensive POMS section on when a trust can and cannot be considered exempt.68

2. Countable Resources

Resources that are not excluded (see above) are countable resources. A resource is

defined as cash or liquid assets or any real or personal property that an individual or spouse owns

and could convert to cash to be used for support and maintenance.69

The individual must have

the right, authority or power to liquidate the property, or his or her share of the property for it to

be considered a resource.70

If a property cannot be liquidated, the property will not be

considered a resource.71

Example:

Mary has applied for SSI. She owns a future interest in a piece of land worth $10,000.00.

For SSI purposes, the resource will probably not be valued at $10,000.00, because she

does not have a current possessory interest in the land. One or more appraisals may be

appropriate to determine the actual current value of this interest.

Countable resources can include liquid resources, such as cash, stocks, bonds, mutual

funds, shares, promissory notes, mortgages, life insurance policies, and financial institution

accounts that can be converted into cash within 20 days.72

Liquid resources, other than cash, are

evaluated according to the individual’s equity in the resources.73

Jointly-held accounts are

discussed at 20 C.F.R. § 416.1208(c).74

All the funds in a jointly held account are presumed to

belong to them in equal shares, but this presumption is rebuttable.

A nonliquid resource is property which is not cash and which cannot be converted to cash

within 20 days.75

Examples of nonliquid resources include loan agreements, household goods,

automobiles, livestock, buildings, and land.76

Nonliquid resources are normally evaluated

according to their equity value.77

“Equity value” is defined as the price that an item can

reasonably be expected to sell for on the open market in the particular geographical area

involved less any encumbrances on the item.78

This is often important in inheritance cases. The

local Social Security office often presumes that the value of a claimant’s interest under a will is

67

20 C.F.R. § 416.1210. 68

SSA POMS SI 01120.200 et. seq. 69

20 C.F.R. § 416.1201(a). 70

20 C.F.R. § 416.1201(a)(1). 71

Id. 72

20 C.F.R. § 416.1201(b). 73

Id. 74

See also Anderson v. Iowa Dep’t of Human Serv., 368 N.W.2d 104, 109 (Iowa 1985). 75

20 C.F.R. § 416.1201(c). 76

Id. 77

Id. 78

20 C.F.R. § 416.1201(c)(2).

10

the full amount indicated in the will, in spite of the fact that the inheritance is not liquid until the

will is probated, and in some cases property in the will is sold and distributed. In those cases, it

may be necessary to get an estimate of the present market value of the claimant’s future interest

in the inheritance. Rules regarding the increase or decrease in the value of a resource are located

at 20 C.F.R. § 416.1207(b) and (c).

C. Income vs. Resource

Items received in cash or in kind during a month are evaluated first under the income

counting rules and, if retained until the first moment of the following month are subject to the

rules for counting resources at that time.79

If an individual sells, exchanges, or replaces a

resource, the receipts are counted as a resource, and not as income.80

Retroactive SSD and SSI

payments are not counted as income, and do not count as a resource for nine months following

the month of receipt.81

After nine months the unspent portion of any such lump sum payment

can be counted as a resource.82

Once the money from the retroactive payment is spent, the

exclusion does not apply to items purchased with the money.83

IV. SSI, Medicaid and Divorce: Strategies

So what does all this have to do with divorce? Most divorces do not involve a disabled

litigant. However, in the small number of cases where it does come in to play, crafting a decree

to maximize eligibility for benefits can provide long term financial benefit to the client.

A. Spotting the Issue

Obviously, if your client tells you they receive SSI benefits, you know your client can be

affected by these eligibility rules. How else can you spot the issue? The key is knowing the

household’s sources of income, now and after the separation/divorce. First, if your client

receives a Social Security benefit, determine what type of benefit it is. Do not assume the client

knows. Many SSI recipients do not know the difference between Social Security and SSI

benefits, or which type of benefit they receive. It is generally easy enough to look at your

client’s last benefit notice or obtain a confirmation from their local Social Security office as to

what type of benefit they receive. This should extend to any children in the household that

receive Social Security benefits as well. Second, even if your client does not receive a Social

Security benefit, find out what their income expectations are after the divorce. Because SSI

benefits are income and resource sensitive, some spouses would be eligible for SSI but for their

spouse’s income and/or the household’s non-exempt resources. During the prolonged economic

slump, more and more in their fifties and early sixties are giving up on the job market and filing

for Social Security benefits. Clients currently receiving unemployment, workers compensation,

and private disability benefits (such as private short term or long term disability benefits, such as

79

20 C.F.R. § 416.1207(d). 80

20 C.F.R. § 416.1207(e). 81

20 C.F.R. § 416.1233(a). 82

Id. 83

20 C.F.R. § 416.1233(c).

11

through a former employer), may be looking at applying for SSI once their current source of

income dries up.

Be aware of how your client’s divorce status might affect benefit eligibility prior to the

completion of the divorce as well. Social Security has rules that “deem” a portion of a non-

disabled spouses income to the disabled spouse.84

The more income deemed towards the

disabled spouse, the lower their SSI benefit amount will be. However, this income deeming does

not occur if the spouses no longer live in the same household.85

A separated spouse may become

eligible for SSI benefits after separation that she would not have been eligible for while the

couple was living together. In addition, remember that a house loses its exempt status for SSI

resource purposes if the disabled spouse is no longer living there (unless covered by the domestic

abuse exemption). It will be important to weigh the potential loss of benefits into the decision to

move or to try to stay in the house.

B. Fixing the Problem.

Now that you know the rules, how do you use them to your client’s advantage?

1. Alimony

For SSI purposes, alimony and support payments are cash or in kind contributions to

meet the claimant’s needs for food and shelter.86

Instead of a cash alimony payments, consider

crafting the decree to have bills paid directly without the money ever passing through your

client’s hands. According to SSA POMS 00815.400.A, “[p]ayment of an individual's bills

(including supplementary medical insurance under title XVIII or other medical insurance

premiums) by a third party directly to the supplier is not income. However, anything received in

kind as a result of the payment is income if it is food or shelter.” (See also 20 CFR §

416.1103(g)). Remember that according to Social Security, shelter includes “room, rent,

mortgage payments, real property taxes, heating fuel, gas, electricity, water, sewerage, and

garbage collection services.”87

SSA POMS 00815.400.B lists the following two examples:

1. Third Party Payment Results in ISM (“In Kind Support and Maintenance”)

The daughter of Mrs. Harper, an SSI recipient, pays the grocer for food delivered

to her mother. Although the payment to the grocer is not income, Mrs. Harper

receives ISM in the form of food, subject to the PMV (SI 00835.300).

2. Third Party Payment Does Not Result in Income

84

20 C.F.R. §416.1121. 85

20 C.F.R. §416.1121 (“If you have an ineligible spouse who lives in the same

household, we apply the deeming rules.” 86

20 C.F.R. §416.1121(b). 87

20 C.F.R. 416.1130(b).

12

Joshua Hall, an SSI recipient, is unable to pay his phone bill so his sister pays the

phone company with her own money. Neither the payment to the phone company

nor the telephone service received as a result of the payment is income because it

is not food or shelter.

Social Security also does not consider personal services performed for a disabled individual as

income.88

Examples of personal services for an individual which are not income are:

--Mowing the lawn;

--Doing housecleaning;

--Going to the grocery; and

--Babysitting.89

Presumably, if providing those types of personal services is not income, third party

payments to provide those types of personal services should also not count as income.

The upshot of the in kind support and maintenance rule is that if alimony or support

payments are specifically designated as third party payments made by the non-disabled spouse

for anything other than food and shelter, the payments are not counted as income for SSI

eligibility purposes. Obviously, if an uncooperative spouse is not going to make their monthly

payment reliably, the disabled spouse can suffer. But the same is true whether the support

payment are designated for specific bills or just paid directly to the spouse. Payments could

arguably include a variety of items, including:

--Phone, cable, and internet services

--Personal services such as lawn care, laundry, house cleaning, and transportation

--Car and car insurance payments

--Day care

--Tuition for school or other training

--Payments for a computer, uncovered medical equipment, a new refrigerator, etc.

--Travel (not Aruba, but perhaps annually paying travel expenses to visit family over the

holidays).

Be sure to use your imagination. A monthly payment of $710 does not go very far.

Remember that although payments for food and shelter reduce the disabled spouse’s SSI benefit

amount, Social Security will generally only reduce the SSI benefit amount by one third.90

Consider a case in which the non-disabled spouse would likely pay $800/month in alimony

payments to the disabled spouse. That direct alimony payment would eliminate the disabled

spouse’s eligibility for SSI and Medicaid. However, if that $800/month payment was designated

as a third party payment to cover the monthly mortgage and escrow payment, the disabled spouse

88

POMS SI 00815.150.A. 89

POMS SI 00815.150.B. 90

20 C.F.R. § 416.1131.

13

would continue to receive two thirds of her SSI benefit payment, maintain eligibility for

Medicaid, and have her mortgage, taxes and insurance covered every month.

2. Property Settlements

Property settlements can wreak havoc on an SSI recipient. Most damage from a lump

sum property settlement can be avoided if the client arranges to suspend their SSI and Medicaid

benefit amount for the month in which they receive the settlement, spend down the settlement

prior to the beginning of the next month in order to regain resource eligibility, and then resume

benefits. If the settlement is large enough, the loss of one month’s SSI benefit amount should

not be an issue. It is always more important to make certain the client will not need their

Medicaid for any significant expenses in the month they receive the settlement.

Beyond this, there are ways to avoid resource ineligibility altogether. Typically, the

largest asset in a dissolution action is the home. The home is exempt as a countable resource

regardless of its value.91

If the house is liquidated through the divorce, the proceeds from the

sale of the home will be excluded from resources to the extent that they are intended to be used,

and are in fact used, to purchase another home within 3 months after date of receipt of the

proceeds.92

If the house is sold in installment payments, the down payment and that portion of

any installment amount constituting payment against the principal remain exempt in the same

manner.93

If interest is received as part of an installment payment resulting from the sale of an

excluded home under a promissory note or similar installment sales contract, the interest

payments are not exempt.94

Outside of the home, Social Security exempts cash or the replacement of lost, stolen or

damaged exempt resources.95

There are not regulations exempting proceeds from the sale of

other exempt resources. Consequently, aside from the house, the disabled spouse will generally

be better off having other exempt resources (furniture, appliances, a car, a burial trust, the federal

income tax refund96

) transferred to her through the divorce rather than liquidating them and

distributing the cash proceeds. The worst possible solution is for the disabled spouse to receive

monthly payments in compensation for the liquidation of any resource other than the home.

3. Child Support

As discussed above, child support payments (including arrearage payments) made on

behalf of an SSI child are unearned income to the child. One-third of the amount of a child

support payment made to or for an eligible child by an absent parent is excluded.97

For example,

if the non-custodial parent is ordered to pay $500/month in support to a child on SSI, Social

91

20 C.F.R. § 416.1212(b). 92

20 C.F.R. § 416.1212(d). 93

20 C.F.R. § 416.1212(e)(3). 94

20 C.F.R. § 416.1212(h). 95

20 C.F.R. § 416.1232(a). 96

20 C.F.R. § 416.1235. 97

POMS SI 00830.420(B)(1).

14

Security will deduct one-third of the support payment, plus a $20 income disregard. The

remaining amount of income attributed to the child will be $313.33 ($500 - $166.66 - $20 =

$313.33). This will reduce the child’s SSI benefit amount to $396.67 ($710 – $313.33 =

$396.67).

Are there ways for the child support order to reduce the unearned income attributed to the

child? There are several options. First, assume the support order is for two children instead of

one. One child receives SSI and one does not. Assume Iowa child support guidelines would

require a payment of $1000/month for two children. Social Security should assume half of that

support goes to each child, or $500/month for each child. Using the calculations above, the

disabled child would have their SSI benefit amount reduced to $ 396.67/month.

But assume that under the child support guidelines support for one child would be

$687/month and for two children it would be $1000/month. If the decree specifies that the non-

disabled child is to receive $687/month in support, and the disabled child is to receive

$313/month ($1000 - $687 = $313), then the actual support amount to the custodial parent

remains the same, but the unearned income attributed to the disabled child is significantly lower.

Social Security will deduct one-third of the support payment, plus a $20 income disregard. The

remaining amount of income attributed to the child will be only $188.67 ($313 - $104.33 - $20 =

$188.67). This will reduce the child’s SSI benefit amount to $521.33 ($710 – $188.67 =

$521.33). In other words, the disabled child would receive an additional $124.66/month in SSI

benefits.

In addition, as discussed with alimony, consider using the decree to specify that the non-

custodial parent make direct payments to vendors for specific non-food and shelter items. For

example, if the child is attending a private school and the school’s tuition exceeds $313/month

designated as the disabled child’s support amount, the disabled child would be entitled to the full

amount of SSI, her school tuition would be paid, and the custodial parent would receive

$687/month for the non-disabled child. In other words, the support payment would remain

$1000/month between the two children, but the household would receive $1710/month in

income. Again, direct vendor payments are limited only by your imagination. Because clothing

is excluded from the in kind food and shelter deduction, the non-custodial parent can buy the

child a $50 gift card each month to a store that sells clothes (but not food). The non-custodial

parent could pay the disabled child’s household portion of the cable, phone and internet bill, or a

monthly payment for the child’s computer or car, or for uncovered durable medical expenses or

equipment. The key is to designate specific monthly vendor payments for the disabled child’s

portion of (non food and shelter) household expenses, or for other items that will specifically

benefit the disabled child.

If your disabled client is the noncustodial parent, be aware that under Iowa’s child

support guidelines it is the policy of the State of Iowa that every parent contributes to the support

of his or her child in accordance with the means available. However, “the appropriate figure is

zero if the noncustodial parent’s only income is from Supplemental Security Income.”98

The

rule seems to indicate that if the noncustodial parent receives both SSI and SSD, they can still be

responsible for the minimal child support obligation regardless of the fact that their income is

98

Iowa Child Support Guidelines Rule 9.4.

15

still about the same as if they were just on SSI, although some judges will accept an argument

that under those circumstances child support should be zero or that this is cause to deviate below

the minimal child support amount.

If the disabled client receives Social Security Disability benefits, their children may also

be able to draw benefits off of their account. It is generally up to the custodial parent to apply

for those benefits at their local Social Security office. The rule in Iowa is that a child support

award may be offset by Social Security benefits during the period in which the benefits are

received.99

Consequently, courts are typically willing to recognize a children’s Social Security

benefit based on the parent’s insured status to suffice for their child support obligation.

Note that in concurrent claims, child support garnished from SSD still counts as income

to the claimant for SSI purposes.100

C. CYA!

Fortunately, your client’s local Social Security office should be willing to work with you

to confirm your reading of how their rules should (or should not) affect your client’s benefit

payments. Because the local office makes those calls normally anyway, the client should have

an SSI worker assigned to them in the local office that can answer your questions on what will

and what will not work in crafting a settlement. If you have questions as to whether a strategy

will work or not, you are much better confirming it with the local office. If your instinct is to

avoid asking them if your strategy passes muster, it is probably a clue that you are on thin ice. It

also never hurts to have copies of correspondence with Social Security showing that you

confirmed your strategy with them in advance of the final decree.

D. Worst Case Scenario: What to do with an Overpayment

Despite the best laid plans, there is still always the possibility that things can go wrong.

In this case, there may still be a slim possibility that Social Security will find that the dissolution

decree results in the creation of a benefit overpayment. All is still not lost—there is the

possibility of appealing the overpayment and, if that is not successful, convincing the agency to

waive collection of the overpayment.

Social Security regulations define an overpayment as a “payment of more than the

amount due for any period.”101

SSD overpayments are addressed at 42 U.S.C. § 404 and 20

C.F.R. § 404.501 et. seq. SSI overpayments are addressed at 42. U.S.C. § 1383(b) and 20 C.F.R.

§ 416.535 et. seq. If the recipient believes that they have not been overpaid, or if they believe

the amount of the overpayment in the notice is incorrect, they can file an appeal. The appeal

procedure is the same as in disability cases, and is initiated by filing a written request for

99

Iowa Code § 598.22C; Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990); Potts v. Potts, 240

N.W.2d 680, 682 (Iowa 1976). 100 SSR 82-38.

101 20 C.F.R. § 416.537; see also POMS GN 02201.001.

16

reconsideration. This can be done by sending a letter or the standard agency reconsideration

form to Social Security. As with disability cases, the appeals deadline is 60 days.102

Social

Security will take no action to try to collect a SSD overpayment until 60 days after the claimant

is notified about the overpayment. If a reconsideration is requested, collection efforts cannot

begin until a reconsideration decision is issued.103

With SSI, SSA will begin collection efforts

after 60 days if no request for reconsideration or waiver was requested within 30 days of the

overpayment notice. Collection efforts will stop once a request for reconsideration has been

filed.104

If reconsideration is requested, claimants are entitled to a personal conference, and the

personal conference may be held by telephone or video conference in both SSD and SSI cases.105

Recovery is not stopped when the overpaid individual appeals beyond the reconsideration

stage.106

If the recipient agrees that she has been overpaid and does not dispute the amount, she

can request a waiver of the overpayment. If SSA grants the waiver, they will take no further

action to collect the overpayment. In a sense, the overpayment simply ceases to exist.

There is no time limit in which to request a waiver.107

If the recipient requests a waiver

outside of the first 60 days of being notified about the overpayment (SSA does not collect in the

first 60 days), Social Security must stop collection efforts in the month the waiver is requested

and it cannot begin any collection efforts until an unfavorable decision has been issued.108

As

with appeals, collection efforts can resume after a reconsideration decision.

There is also no limit to the number of times a waiver can be requested. If a request for

waiver is denied because of a finding of fault, res judicata will probably preclude subsequent

waiver applications.109

However, if a request for waiver is denied because SSA finds the

claimant is able to repay the overpayment, and the claimant’s financial situation subsequently

worsens, there is nothing to preclude a new waiver application on that issue.110

SSA should waive an overpayment if the recipient can show that they were without fault

in causing the overpayment,111

and that adjustment or recovery of the overpayment would either

defeat the purpose of the Social Security Act (which generally means that they cannot afford to

repay the overpayment),112

or would be against equity and good conscience.113

The claimant has

102

20 C.F.R. §§ 404.909(a)(1), 416.1409(a). 103

POMS GN 02201.011.A and C. 104

POMS SI 022201.001.A.2; POMS SI 02220.017.A.4. 105

20 C.F.R. §§ 404.506, 416.557. 106

POMS GN 02201.011.C; POMS SI 022201.017.A.4.e and f. 107

POMS GN 02201.011.A; POMS GN 02250.310.A. 108

20 C.F.R. § 404.506(b); SSR 94-4p; POMS GN 02201.011.D.3; POMS GN

02201.019.B.1 (Title II); POMS SI 02220.001.A.2 (Title XVI); see also Califano v.

Yamasaki, 442 U.S. 682, 99 S. Ct. 2545, 61 L. Ed. 2d 176 (1979). 109

POMS GN 02201.011(A). 110

POMS GN 02201.011(A). 111

20 C.F.R. §§ 404.507, 416.552. 112

20 C.F.R. §§ 404.508, 416.553.

17

the burden of proving she is without fault.114

Proving that the claimant was without fault is

generally the most difficult part of the waiver process. However, correspondence with Social

Security showing you confirmed your reading of their regulations before your client agreed to a

decree can go a long ways towards proving the client was reasonably relying on agency

representations and, therefore, was without fault regarding any overpayment caused by the

provisions of the decree.

If the disabled spouse becomes resource or income ineligible for SSI benefits, it is critical

to try to resolve the eligibility issue in less than a year. Benefits are terminated if a suspension

lasts for longer than twelve months.115

If that occurs, the spouse must reapply for SSI benefits, a

process that can easily take a year or longer.

113

20 C.F.R. §§ 404.509, 416.554. 114

Coulston v. Apfel, 224 F.3d 897, 900 (8th Cir. 2000). 115

20 C.F.R. § 416.1335.

Appellate Advocacy: How to Win on Appeal

4:00 p.m.-5:00 p.m.

Presented byAndrew B. Howie

HUDSON, MALLANEY, SHINDLER & ANDERSON, P.C.

5015 Grand Ridge Drive, Suite 100West Des Moines, IA 50265

Phone: 515-223-4567Fax: 515-223-8887



APPELLATE ADVOCACY- STANDARDS & SECRETS (Musings from a Practitioner)

1. CONTEXT

Andrew B. Howie HUDSON, MALLANEY, SHINDLER & ANDERSON, P.C.

5015 Grand Ridge Drive, Suite 100 West Des Moines, Iowa 50265

515-223-4567; FAX: 515-223-8887 AHowie@H udsonLaw .net

Friday, October 25, 2013 ISBA FAMILY LAW SEMINAR

a. de novo review

"An action for dissolution of marriage is an equitable proceeding and, consequently, this court's review is de novo. In equity matters, such as this, where our review is de novo, ... it is our responsibility to review the facts as well as the law and determine from the credible evidence rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the trial proceedings. While weight will be given to findings of the trial court, this court will not abdicate its function as triers de novo on appeal."

In re Ma1riage of Winegaz·d, 257 N.W.2d 609, 613 (Iowa 1977) (citations omitted). b. de novo review diluted

"Even though our review is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. This deference to the trial court's determination is decidedly in the public interest. When appellate courts unduly refine these important, but often conjectural, judgment calls, they thereby foster appeals in hosts of cases, at staggering expense to the parties wholly disproportionate to any benefit they might hope to realize."

In re Marn·age of Benson, 545 N.W.2d 252, 258 (Iowa 1996) (citations omitted); see In re Man·iage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).

1

c. "[A] trial court, as first· hand observer of witnesses, holds a distinct advantage over an appellate court which necessarily must r ely on a cold transcript." In 1·e Maniage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989).

2. TRIAL

a. Am I trying this case for an appeal? 1. Yes, always. This is a bench trial, not a jury trial 11. Protect your record

(1) Your witnesses are testifying, not you (a) don't lead (b) let t hem answer the question (c) did they answer the question that was asked

(2) Enter and Keep Track of your Exhibits b. Preservation of Error

1. Evidentiary Objections (1) Even in equity, you have to object and cite the appropriate

basis (2) Evidence is admitted subject to the objection

(a) In re Ma1n'age of Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App. 1993) ("The trial court should have received objections to evidence but not ruled on the objections and allowed the evidence in the record. That way we would have the evidence and could make our own determination as to its admissibility.")

(b) If not, make your offer of proof. n. Standing Objections

(1) Disfavored, but allowed. N epple v. We1fenbach, 274 N.W.2d 728, 732 (Iowa 1979) (holding that when evidence is properly objected to the objection need not be r epeated when other evidence of the same class is offered.)

(2) Be careful, a standing objection may not preserve error. Prestype, Inc. v. Carr, 248 N.W.2d 111, 117 (Iowa 1976); Ackerman v. James, 200 N.W.2d 818, 824 (Iowa 1972)

m. Motion Limine (1) Legal Effect of Ruling on Motion in Limine:

The primary purpose of a motion in limine is to preclude r eference to potentially prejudicial evidence prior to the trial court's definit ive ruling on its admissibility. State v. Davis, 240 N.W.2d 662, 663 (Iowa 1976). Generally, any error based on the trial court's disposit ion of a motion in limine is not preserved unless the record includes a t imely objection when the challenged evidence is offered at trial. Id. The resolution of a preservation of error issue is "not controlled by the title of

2

the motion or its prayer." State v. O'Connell, 275 N.W.2d 197, 202 (Iowa 1979). Our concern is "what the r uling of t he trial court does or purports t o do." I d. A ruling limited to protection from prejudicial r eference s must be distinguished from a ruling on t he a dmissibility of the challenged evidence. State v. M1lle1·, 229 N.W.2d 762, 768 (Iowa 1975). If the trial court's ruling is dispositive on the issue of admissibility, it is considered final for purposes of appeal and. no further objection is necessary. I d.

State v. Jensen, Case No. 06-0879, 2007 WL 2963955 at *3 (Iowa Ct. App ., filed Oct. 12, 2007).

(2) The Jensen court held that because the district "court, without condition or admonition, expressly precluded [an expert witness'] testimony . . . No additional trial objections wer e necessary to preserve error on this issue." Id. at *3.

IV.

v .

Trial Briefs - raising an issue only in a trial brief is not sufficient to preserve error. Lamp v. American Prosthetics, Inc., 379 N.W.2d 909, 911 (Iowa 1986); see also Iowa R. Civ. P. 1.442(4) ("no party shall file legal briefs or memoranda, except in support of or resistance to a motion for summary judgment, unless expressly ordered by the court"; therefore, trial briefs typically are not part of the appeal record) . All issues raised in an appeal must h ave been raised and decided by the district court to be preserved for review on appeal. B1ll Gnmde1·'s Sons Constr., Inc. v. Ganze1·, 686 N.W.2d 193, 196-98 (Iowa 2004) (holding that an issue t hat was not presented to the t rial court will not be considered for the first time on appeal) (citations omitted); In re Ma1n'age ofOkonkwo, 525 N.W.2d 870, 872 (Iowa Ct. App. 1994) .

3. TIME TO FILE APPEAL; CROSS-APPEAL; 1.904(2) MOTION

a. Notice of Appeal- Deadline 1. 30 days from filing of final order, except in

Termination -of-parental-rights and child-in-need-of-assistance cases under Iowa Code chapter 232. R. 6.101(1)(b).

11. 15 days from filing affinal order in Termination -of-parental-rights and child ·in ·need -of-assistance cases under Iowa Code ch apter 232. R. 6. 101(1)(a).

111. "Tolling of filing deadline by timely service. The t ime for filing a notice of appeal is tolled when the notice is served, provided the notice is filed with the district court clerk within a reasonable time. See Iowa R. Civ. P . 1.442(4)." R. 6. 101(4).

1v. Extensions of time to file notice of app eal "The supreme court may extend the t ime for filing a notice of appeal if it determines t h e clerk of the district court failed to notify the prospective

3

appellant of t he filing of the appealable final order or judgment. A motion for an extension oftime must be filed with the clerk of the supreme court and served on all parties and the clerk of the district court no later than 60 days after the expiration of the origina l appeal deadline as prescribed in rule 6.101(1)(a) or (b). The motion and any resist ance shall be supported by copies of relevant portions of the r ecord and by affidavits. Any extension granted sh all not exceed 30 days after the date of the order granting the motion."

v. Missing the deadline. Failing to timely file a notice of appeal will result in the dismissal of the appeal because Iowa's appellate courts lose subject matter jurisdiction to decide the appeal. Hills Bank & Trust Co. v. Conve1·se, 772 N.W.2d 764, 77 1 (Iowa 2009). "Subject matter jurisdiction cannot be conferred by consent, waiver or estoppel , but is conferred solely by constitutional or statutory authority." In l'e Guardianship and Conservato1·ship of Cerven, 334 N.W.2d 337, 340 (Iowa Ct. App. 1983) .

b. Final vs. Interlocutory 1. A party only has the nghtto appeal a final order. Iowa R. App. P.

6.103(1). 11. What is a "final order"?

(1) Rule 6.103(1) defines a "final order" as: "orders and judgments of the district court involving t he merits or materially affecting the final decision . . . An order granting or denying a new trial is a final order. An order setting aside a default judgment in an act ion for dissolution of marriage or annulment is a final order. An order setting aside a default judgment in any other action is not a final order."

(2) The Iowa Supreme Court defined a final order as "one that conclusively adjudicates all of the rights of the parties, and places the case beyond t he power of the court to return the parties to their original positions ." In l'e Mal'l'iage ofWelp, 596 N.W. 2d 569, 572 (Iowa 1999) (internal quotation marks and citations omitted).

111. All orders that are not final are interlocutory. See Iowa R. App. P. 6.103(1). Rule 6.103(3) states:

No interlocutory order may be appealed until after the final judgment or order is entered except as provided in rule 6. 104. Error in an interlocutory order is not waived by pleading over or proceeding to trial. If no appeal was taken from an interlocutory order or a final adjudication in the district court under Iowa R. Civ. P. 1.444 that substantially affected the rights of the complaining party, the appellant may challenge

4

such order or final adjudication on appeal of t he final order or judgment.

1v. Examples: (1) orders on temporary matters concerning child or spousal

support or attorney fees are final orders. In reMarriage of Denly, 590 N.W.2d 48, 49-50 (Iowa 1999); In reMarriage of Winegard, 257 N.W.2d 609, 614 (Iowa 1977); Iowa R. App. P. 6.103(1).

(2) orders on temporary matters concerning child custody are interlocutory orders. In reMarriage of Denly, 590 N.W.2d 48, 50-51 (Iowa 1999); Iowa R. App. P. 6. 103(1), .104.

v. Appealing an interlocutory order. (1) A party may only appeal an interlocutory order with the

Supreme Court's permission. See Iowa R. App. P. 6. 103(1), .104.

(2) An application to appeal an interlocutory order must be filed within 30 days of the district court's order, but within 15 d ays in t e rmination -of-parenta l- right s a nd child-in-need-ofassistance cases under Iowa Code chapter 232. Iowa R. App. P. 6.104(1)(b). However , a party does not waive the right to appeal an erroneous interlocutory order by failing to file an application for interlocutory appeal, and the party can challenge that error in the appeal from the final order. Rule G. l 03(3).

(3) In order to grant the application to appeal an interlocutory order, the appellate court must find:

(1) that the court's order involves substantial rights; (2) t he order will materially affect the final decision; and (3) that a determination of the or der's correctness before trial on the merits will better serve the interests ofjustice. See Iowa R. App. P. [6. 104(1)]; Banco Mortgage Co. v. Steil, 351 N.W.2d 784, 787 (Iowa 1984) (test for gr anting permission to appeal for those appeals improvidently taken from interlocutory order s is same as test applied under rule [6.104(1)]). We note that in prior cases "[w]e have been very reluctant to allow interlocutory appeals in t his manner." In re WD. III, 562 N.W.2d 183, 186 (Iowa 1997); see also In re Marriage of Graziano, 573 N.W.2d 598, 600 (Iowa 1998) ("We . . _cannot and do not grant permission under rule [6.104] merely because child placement is implicated.").

In re Marriage of Denly, 590 N.W.2d 48, 51-52 (Iowa 1999).

5

c. Tolling the Deadline to File a Notice of Appeal 1. When a party timely files a motion under rule 1.904(2), rule

6.101(1)(b) tolls the t ime to file a notice of appeal to within 30 days of the filing of the district court's ruling on the 1. 904(2) motion.

u. However, not all 1.904(2) motions will toll the appeal deadline. The Supreme Court, in Baur v. Baw· Farms, Inc., 832 N.W.2d 663, 668-69 (Iowa 2013) (emphasis added), explained the difference :

Rule 1.904(2) provides that the "findings and conclusions" of the district court may be enlarged or amended and the judgment or decree modified accordingly "[o]n motion with or filed within the time allowed for a motion for new trial." Iowa R. Civ. P. 1.904(2) . We have explained that a motion to enlarge or amend is available only to addr ess rulings on factual issues tried without a jury and that any legal issues raised in the motion must have been addressed in the context of an issue of fact tried by the court without a jury. See Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002). When a rule 1.904(2) motion amounts to nothing more than a rehash of legal issues previously raised, we will conclude the motion does not toll the time for appeal. Explore Info. Servs. v. Ct. Info. Sys., 636 N.W.2d 50, 57 (Iowa 2001). By contrast, when used to obtain a ruling on an issue that the court may have overlooked, or to request the district court enlarge or amend its findings when it fails to comply with rule 1.904(1), the motion is proper and will toll the time for appeal. See In reMarriage ofOkland, 699 N.W.2d 2GO, 2GG- G7 (Iowa 2005).

d. R. 1.904(2) motion 1. Deadline

(1) A posttrial motion, including one per Iowa Civil Procedure Rule 1.904(2), must be filed within fifteen days of the date the final order is filed. Iowa R. Civ. P. 1.1007 ("Motions under rules 1.1003 and 1.1004 and bills of exception under rule 1.1001 must be filed within fifteen days after filing of the verdict, report or decision with the clerk or discharge of a jury which failed to return a verdict, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed 30 days."); see R. 1.904(2) ("On motion joined with or filed within the time allowed for a motion for new trial, [R. 1.1004].")

(2) The mail rule - adding three days to the time period permitted to file a response - does not apply to 1.904(2) motions. Iowa R. Civ. P. 1.443(2) ("Such additional time shall not be applicable where a court has prescribed the method of service of notice and the number of days to be given or where the deadline runs from entry or filing of a judgment, order or decree.").

6

e. Should I file a 1.904(2) motion? 1. Iowa Civil Procedure Rule 1.904(2) st ates:

On motion joined wit h or filed within the time allowed for a motion for new trial , the findings and conclusions may be enlarged or amended and the judgment or decr ee modified accordingly or a different judgment or decree subst it ut ed. But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without h aving objected to it by such motion or otherwise. Resistances to such motions and replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5).

n . Rule 1.904(2) permits an aggrieved par ty to file a motion requesting enlar gement or expansion of t he court's findings or conclusions which "is primarily designed for the party faced with a n adver se judgment, not for t he party defending the judgment." In re Man·iage ofOklan d, 699 N.W.2d at 267. (1) "The rule can be used by a par ty, with an appeal in mind, as

a tool for preservation of error . Similarly, it can be used to better enable a par ty to attack 'specific adver se findings or rulings in the event of an appeal' by requesting additional findings and conclusions. Addit ionally, it can be used, with no appeal in mind, to obt ain a ruling on an issue that t he court may have overlooked in making its judgment or decree." Id. at 266.

(2) "[W]hen the district court fa ils to make specific findings, a rule 1.904(2) motion is an appropriate mechanism to preserve error. Moreover , if the movant asks the court to examine fact s it suspects the court overlooked and requests a n expansion of the judgment in view of that evidence, then the motion is proper." Sierra Club Iowa Chapter v. Iowa Dept. ofTransp., 832 N.W.2d 636, 641 (Iowa 2013) (citations omitted).

(3) Proper. When using a rule 1.904(2) motion to preserve error, it is proper for the motion to a ddress "purely legal issue[s]" presented to t he district court prior to its ruling but not decided by it. Sierra Club, 832 N.W.2d at 641.

(4) Essen tial. " [If] the distr ict court failed to make sufficiently specific findings and conclusions, then the [party] must file a rule 1.904(2) motion to preserve [t he error]." Lamasters v. State, 821 N.W.2d 856, 863, 864 n.2 (Iowa 2012); accw·d Meier v. Senecaut, 641 N.W.2d 532, 538·39 (Iowa 2002).

7

(5) Improper.

A "rule 1.904(2) motion is improper where the motion only seeks additional review of a question of law with no underlying issue of fact . Additionally, if the posttrial motion amounts to no more than a rehash of legal issues raised and decided adversely to the movant, the motion is not appropriate. Thus, a rule 1.904(2) motion is not proper if it is used merely to obtain reconsideration of the district court's decision."

Sierra Club Iowa Chapter v. Iowa Dept. ofTTansp., 832 N.W.2d 636, 641 (Iowa 2013) (emphasis added, internal quotations omitted, and citations omitted).

f. Should my client cross-appeal? 1. Only if client also wants to review district court's decision 11. "Failure to bring a cross-appeal in the manner provided by the

Rules of Civil Procedure precludes examination of this question upon appeal. Review is de novo as respondent states but it is such only on matters properly presented to this court." In re Novak's Maniage, 220 N.W.2d 592, 598 (Iowa 1974) (holding that wife's fa ilure to bring cross appeal from trial court's decree in marriage dissolution proceeding precluded her raising on appeal issue of award of custody of minor son to husband) (citing In re Main·age of Williams, 199 N.W.2d 339, 346 (Iowa 1972); see Becker v. Cen t1·al States Health & Life Co. of Omaha, 431 N.W.2d 354, 356 (Iowa 1988), oven·uled in pal"t by Johnston Equipment Coip. of Iowa v. IndustJ"ial Indem. , 489 N.W.2d 13, 16 (Iowa 1992) ("a successful party need not cross-appeal to preserve error on a ground urged but ignored or rejected in trial court") (emphasis added).).

4. APPEAL

a . Time. How ever long you estimate it will take to draft your brief- triple i t.

b. Always be Arguing c. Start with the Statement of Facts

1. Wh at is your client's story? 11. Adverse witness testimony carnes more weight than friendly

witnesses. 111. Don't exaggerate or ramble iv. Always cite to record

d. Apply the Facts to the Law 1. Simplify and Clarify

(1) know your audience (2) chronological order is the best order

8

(3) Short sentences, concise points ii. give the appellate court a sense of injustice

(1) always defer to the district court (a) never insult the district court (b) use the district court's findings to favor your

argument (2) make the appellate court feel that by reversing the district

court, they are righting a wrong 111. Admit mistakes and address them

e. Be visual- use graphs and tables. f. Ask for specific relief g. Oral Argument

1. Typically granted when panel has question needed supplementation

11. Granting or denying oral argument is not indicative of outcome 111. If granted oral argument, preparation is key. You may not win

your case, but you can sure lose it, e.g., panel wants the litigant to concede a crucial point.

9

Statement of Facts

When this case came for trial in April 2012, Dave was seven years-old and in first grade. Dave's parents, Vera and Chuck, have been separated and divorced for almost all of Dave's life. Since Vera and Chuck's separation , Vera has controlled and restricted Dave's contact with his father. She forbids Dave from phoning Chuck while Dave is in her care. She does not give Chuck information about Dave's health, educational, or other activities. Holding Chuck to the minute, Vera refuses Chuck any visitation with Dave outside of the limited time allotted to Chuck under the decree. Except for sporadic h oliday visitation during the school year , Vera allows Chuck visitation four and one-half hours on one evening per week and from 4:00 p.m. on Friday to s:oo p.m. on Sunday every other week. Due to Vera's strict adherence to the visitation guidelines, Chuck endures three and half weeks without contact with Dave between the time summer visitation schedule ends in August and alternating weekend visitation r esumes in September. In 2011, Vera attempted to restrict Chuck's Christmas visitation by defining the terms of the decree narrowly when, in 2010, she interpreted them in the exact opposite manner to restrict his visitation over Dave's Christmas recess. During t he time that Dave is in Vera's care, Vera will not communicate with Chuck and forbids Dave from contacting him. Whenever Chuck tries to talk with Vera about Dave, she laughs and slams the door in Chuck's face. To r emain involved, Chuck goes around Vera to discover Dave's development and needs.

If not for Chuck's visitation rights provided by the divorce decree, Vera would remove Chuck from Dave's life. Despite warnings from Iowa's district and appellate court~, Vera domineers Dave's relationship with Chuck. Since beginning school, Dave exhibits social anxiety and poor academic performance. The trial record shows that Chuck has matured, compromised, and attempted to communicate with Ver a to better his relationship with her to benefit Dave, but Vera has continued to cajole and connive to impede any progress ofbettering their relationship, regardless of the consequences to Dave.

At the time of trial, Chuck had been employed full- time as the superintendent of t he Liverpool school district for seventeen years. In 2010, he was nominated for the second time for superintendent of the year by the School Administrators of Iowa. He has a Master's Degree in Education Administration K-12 and a Specialists Degree (Eds.) in Education Administr ation K-12. Vera has a high school dip loma and has been employed full-time with the Silver Hammer Company for many years.

Since their divorce, Chuck has not remarried and continues to reside a lone at his home in Liverpool, Iowa. On July 1, 20 10, Ver a married her third husband, Maxwell Edison ("Maxwell") . Maxwell has two children from a previous marriage. When Vera and Maxwell married, only one of Maxwell's children, Rose Edison, resided with Maxwell and Vera. By April 2012, Rose had moved out of Vera and Maxwell's home to reside with Rose's mother. Thus, when this matter came for trial, four people resided in the Edison household: Vera, Maxwell, Dave, and Vera's child with her first husband, Rocky Mustard. Vera's college-attending daughter, Eleanor Mustard, occasionally visits.

Evidence establishing Vera's behavior and attitude toward Chuck were litigated

10

at the first modification trial resulting in specific findings and warnings by the district court and court of appeals. Vera did not grant Chuck the visitation allowed by decree, as she denies every request for visitation addit ional to t he standard weekly, alternating weekend, and holidays that are specifically provided by the Decree. She refused to communicate with Chuck about Dave's education and health needs. Vera denied phone and written contact between Chuck and Dave .

Vera's behavior did not change after the ruling. On the day the Court of Appeals filed its decision a ffirming Judge Rigby's ruling, Vera and Chuck had a visitation exchange of Dave. As Chuck and Dave walked toward Vera, she laughed and said, "I told you you're a f***ing loser." When Dave got into Vera's van, Maxwell shouted at Chuck, "He is my kid now."

Vera routinely r eveals her animosity toward Chuck at visitation exchanges. Vera and Maxwell shout profanity at Chuck, give him "the finger", a nd videotape Chuck. While holding the video camera, Vera and Maxwell often would taunt Chuck through obscene gestures, in tel' alia, to try to evoke a response from Chuck. Dave saw his mother and stepfather videotaping and acting negatively toward Chuck. The videotaping stopped when Maxwell slapped Dave during a visitation exchange.

Vera and Maxwell had parked their van near Chuck's house to retrieve Dave. As Chuck and Dave approached the van, they saw Maxwell sitting in the driver's seat pointing the camera at them. When Dave jumped into the van, he placed his hand in front of the camera lens. In r esponse, Maxwell slapped Dave across the face. Dave screamed. Hearing the scream , Chuck's neighbor ran outside just in time to see Vera slamming the van's sliding door and Maxwell throwing the van into gear and speeding off. Chuck never saw Maxwell or Vera videotaping at Chuck's house after that incident.

Vera's refusal to inform Chuck about Dave's health concerns continues. Chuck learns of Dave's health, injuries, or doctor visits through Dave or his teachers. In August 2011, Dave suffered physical injuries from an unreported car accident. He was riding unbelted in the front passen ger seat of his older sister's car. Eleanor Mustard, Vera's daughter from a previous relationship, drove her vehicle into a parked truck. Though Dave r eceived lacerations and abrasions on his legs and feet, Vera never told Chuck what happened. Chuck finally learned of Dave's accident and injuries several days later from Dave.

Though Dave is a relatively healthy child, he continues to need medical attention for sinus infections, colds, and sore throats. A least four to six t imes since 1999, Vera took Dave to the doctor for illnesses or other injuries. Though Chuck has asked that he be informed, Vera h as informed Chuck of none of these visits or when Dave missed school when he was sick. She would inform Dave's school, but not Chuck. Dave also r eceived prescribed medication during that time. Vera only informed Chuck of Dave's medication at visitation exchanges. To hide Dave's doctor's names from Chuck, Vera intentionally removed the labels from the prescription bottles. Vera then gave the medication in a plastic bag or bottle with her handwritten instructions to Dave to give Chuck.

Knowing that Chuck would have access to Dave's school's emergency contact information card, Vera placed the wrong doctor's name so Chuck would not know

11

Dave's current treating physician. When Vera took Dave to the doctor, Vera refused to tell the doctor that Dave recently h ad received treatment from Chuck's doctors, risking incompatible treatment or over-medication. Each time Chuck took Dave for medical or dental care , he informed Vera by telling her in person during visitation exchanges or in writing. Vera act s mad whenever Chuck notifies her about taking Dave to the doctor and refuses to pay her portion of the medical bills mandated under the decree.

At their rare meetings, Chuck has asked Vera for Dave's doctor's information. She answer s by saying that it was none of his business. Vera so frustrated Chuck's attempts to discover Dave's health information that Chuck resorted to using his attorney to make formal r equests . When Chuck finally learned of Dave's treating physicians, the clinic would not give Chuck any information because Vera never bothered to inform them he was Dave's father. Chuck had to forward a copy of the divorce decree to show he had a right to the information.

When Dave received a black-eye while he was playing catch with Maxwell , Vera never informed Chuck how or when it occurred or what medical treatment Dave received. Chuck finally learned of Dave's injury from Dave. Reflecting how his attitude was different toward Chuck, Maxwell acknowledged that if such an injury happened to his son, he would want to be informed, but he accepted Vera's inappropriate behavior when applied to Chuck.

Since beginning kindergarten in the Fall of 2010 and through his first grade year in 2011-2012, Dave has performed significantly behind his peers in reading, writing, and motor skill development. Dave's poor academic performance is exacerbated, if not caused, by Vera's actions at home and concerning Chuck. Vera's actions involving Dave's schooling began with Dave's preschool and have continued to present. Vera persistently h as refused to communicate with Chuck about Dave's academic progress and has excluded Chuck from major decisions concerning Dave's education. She hides Dave's homework and school announcements from Chuck and sabotages Chuck's efforts to help Dave.

First , Chuck had hoped that Dave would enroll in presch ool at an early age. Vera enrolled Dave in preschool without informing Chuck. During his preschool year , Dave's teacher informed Vera that Dave was not progressing. Vera chose not to inform Chuck. Though she h ad daily contact with Dave, his progress in school, and r eports, she expected Chuck to learn of Dave's progress on his own or through Dave. Vera shunned her legal custodial duties to inform Chuck of Dave's progress that she obtained from Dave's teachers and school administrators.

In April 2010, Vera refused to inform Chuck about a parent meeting for kindergarten information. Vera enrolled Dave in kindergarten in the Fall of2010. At the beginning of Dave's kindergar ten year, Vera and Chuck attended a parent-teacher conference. Though Principal Penny McKenzie and Mrs. Molly Jones, Dave's kindergarten teacher, called the meeting to alleviate problems between Vera and Chuck, Vera acted mad and refused to respond to any of Chuck's or the school officials' suggestions. After that conference, Vera specifically requested that future parent· teacher conferences be held separ ate ly, rather than joint ly with Chuck.

Soon after classes began, Jones discovered that Dave progressed much more

12

slowly than his classmates. Dave's problems were significant enough that the teacher and principal called a meeting in October 2010. Dave's teacher suggested that Dave leave full-day kindergarten to attend a different curriculum called "Rainbow", a halfday program. Vera wanted Dave to attend Rainbow. Chuck and Principal Desmond Lennon wanted Dave to continue in kindergarten. Though Vera felt it was a mistake, Dave remained in kindergarten with extra help from another teacher.

To further help Dave, Dave's principal recommended that Vera allow Chuck to tutor Dave in addition to Chuck's visitation time with Dave. Chuck suggested by certified letter to Vera that he tutor Dave. Vera refused to accept the letter. Chuck then offered to hire a qualified person of Vera's choice at Chuck's expense to tutor Dave. Vera chose not to respond. Vera never allowed Chuck to tutor Dave outside of his visitation time provided by the decree.

In May 2011, Chuck arranged for Dave to be tested at his school. After the test s, Vera wrote to Chuck about the results. Chuck immediately responded that was happy to meet anytime to discuss Dave's test results . Vera did not respond. Essentially, Chuck tried to be helpful to communicate with Vera about Dave's education and Vera refused. Vera's inquiries then stopped with no further effort on her part.

During the Spring of 2011, Dave's lack of academic progress was obvious and his teacher and principal jointly recommended that he repeat kindergarten. Vera was not surprised as she felt it was a "wrong decision" to keep Dave in kindergarten after the October 2010 parent-teacher conference. However, by late summer 2011, Jones and McKenzie reversed their recommendation and suggested that Dave advance to the first grade. In August 2011 , Jones and McKenzie invited Vera to another parent-teacher conference. Vera made no attempt to inform Chuck of that meeting. Without Chuck's input or even informing him of Jones's and McKenzie's new recommendation, Vera unilaterally chose to enroll Dave in first grade only a few days before classes began. Dave attended first grade for the 2011-2012 school year.

As with his kindergarten year, Chuck would drop by school to see Dave and to help with the class. When Chuck visited, Dave's "face lights up and he is excited to see him ... " In first grade, Dave continued to develop slowly. Dave ranked at the bottom of his class in reading and writing. Chuck took affirmative steps to help him, such as reading at least sixteen books with Dave, while Vera read at most two books with Dave in the same time period. He could benefit greatly from "Reading Recovery", a specialized course offered at Chuck's school, but not available a t Dave's current school. Though Vera strongly disagrees, Dave also could benefit greatly from being placed where Chuck is superintendent. At Chuck's school, he could have the daily contact with Dave and his teacher s that Chuck lacks in Vera's school district.

Judge Rigby found, "Vera's prohibition of telephonic and written contacts between Dave and Chuck is inconsistent with the child's best interests, . .. " Vera agreed that her denial of phone contact between Dave and Chuck were not in Dave's best interest s . Echoing the district court's concern, J udge Sackett charged, "She cannot refuse to answer reason able telephone calls or correspondence from Chuck." Since the September 1999 trial , Chuck has attempted to contact Dave by phone approximately once a week. Every t ime he has called Vera's residence, Vera's answering machine has answered or a person h as hung up on h im . Vera forbids Dave from a nswering the

13

phone. Rose, Maxwell's daughter, testified at trial that Vera has a standing rule to all that live in her house that when Chuck calls, let the machine answer. Vera enforces her policy through her caller-ID. Then, when the machine answers, Dave is to be out of the room, so not to hear Chuck's voice. When Rose unintentionally answered Chuck's call, Maxwell punished her.

At trial, Vera testified that Dave could speak with Chuck by phone. However, in the two and one-halfyears since the first modification trial, Vera has allowed Dave to speak with Chuck by phone no more than twice. Even then, she exercised her control over Dave by standing next to him during the brief conversation. Vera does not suggest that Dave call Chuck. Vera also claims that Dave did not know how to use the phone, yet, while in Chuck's care, Dave freely uses the phone.

The dissolution decree and stipulation provide, "Chuck shall have visitation at any other reasonable times the parties shall mutually agree upon." After the first modification trial, both the district court and the appellate court found that it was not in Dave's best interests for Vera to deny visitation not specifically granted in their decree. Regardless, Vera admitted that she still refuses to allow Chuck any additional visitation than that granted by the Dissolution Stipulation.

Vera bans Dave from spending a few extra minutes with Chuck. For example, Vera was very upset at Chuck, Dave's teacher, and the school administrator because Chuck had retrieved Dave thirty minutes early from school. During an argument over whether Chuck could have Dave for a few extra hours at Christmas, Vera called the law enforcement and had an officer retrieve Dave from Chuck's house. In another situation, Chuck gave Vera eight months advanced written notice for a special vacation and she still refused to let Dave spend extra time with Chuck.

Not only does Vera deny Chuck additional visitation, but sh e has denied him visitation allowed by the decree. On Dave's birthday, April 26, 2010, Chuck was entitled to visit Dave from 4:00 p.m. to s:3o p.m. Chuck arrived to have Vera's daughter, Eleanor, pursuant to Vera's instruction, deny Dave from leaving with Chuck. Forced to contact the police, Chuck finally retrieved his son when an officer with the Liverpool Police Department, instructed Eleanor that Chuck could have visitation that evening. As a result, Chuck's plans to have dinner for Dave's birthday with Chuck's family were ruined. When Chuck asked Vera why she caused the trouble, she replied, "Why do you care, you got him."

Chuck's attempt to modify his visitation by only thirty minutes proved to be an unreasonably difficult task. The decree provides that Chuck's weekend visitation begins at 4:00 p.m. When Dave began kindergarten in August 2010, his school dismissed each day at 3:30p.m. Chuck requested that he pick up Dave immediately after school rather than waiting until 4:00. After discussing it at a parent-teacher conference, Vera permitted Chuck to pick up Dave at 3:30 p.m. However, she demanded that Chuck's visitation period end at s:oo p.m., instead of s:3o p.m. as allowed by the Decree.

Vera revoked her permission after only one semester. Vera did not want Dave going with Chuck wearing suitable clothes. Rather, when sh e dressed Dave for Chuck's visitation, she made Dave wear old tattered clothes that were too sma ll or inadequate for the weather. During his first semester of kindergarten , Dave's teacher

14

knew which day Chuck was retrieving Dave from school because she saw how Dave was dressed. Beginning in January 2011, Vera returned to the old schedule of allowing Chuck to get Dave at 4:00 instead of immediately after school, so she could control the clothes Dave wore and the schoolwork he took with him to Chuck's.

Vera routinely deducted from Chuck's time any time she felt was "extra" time not explicitly permitted by the decree. Vera defined "extra" time as any time Chuck spent with Dave not expressly permitted by the decree or "when he's not supposed to" have Dave. If Chuck arrived as few as five minutes or less to his pick up time under the decree, Vera would not allow Dave to leave until the appointed time. If she ever let Dave go early with Chuck, she would arrive at Chuck's to retrieve Dave that many minutes earlier than her appointed time. The few times Vera allowed Dave to spend extra time with Chuck was only when Vera did not want to risk traveling due to bad weather conditions, or r etrieving Dave at the appointed time inconvenienced her.

Vera admitted that Chuck has made specific requests for additional visitation, including permission to take Dave to Chuck's family reunions. She denied these requests, refused to respond, or responded too late in order to deny Chuck's plans. In comparison, Vera has asked Chuck several times to alter the visitation schedule or ask for extra time with Dave for her benefit and Chuck has allowed it each time. However, when Chuck has requested extra time, Vera has refused each request. On one occasion, Vera granted Chuck's request, but over six weeks late, thus denying Dave's ability to go on vacation. Vera's denials of extra time have prevented Chuck from taking Dave on vacations and family reunions .

Chuck has abided by the instructions issued by Chief Judge Sackett and Judge Rigby. He has not been demanding on Vera and has improved his communication with her. Chuck has improved his behavior toward Vera in order to be a better parent for Dave. First, Chuck reduced his calls to Vera and he would h ave stopped writing to Vera completely ifVera would accept his phone calls. Second, he kept his requests for additional visitation to only important events, i.e., vacations and family reunions.

In the year before trial, Dave's poor behavior and emotional instability influenced Chuck to seek professional help through Dr. B. Robert, a licensed psychologist. Dr. Robert met with Dave seven times from November 2011 through March 2012. Vera only allowed Dave to attend Dr. Robert's sessions during Chuck's visitation time, and if not during that time, Vera subtr acted time from Chuck. Chuck and Dr. Robert both informed and encour aged Vera to participate in these sessions.

Vera knew that Dave's school counselor had recommended that Dave receive additional treatment outside of the school due to Dave's stress and anxiety. However , Vera disapproved of Dr. Robert's counseling sessions and she made no suggestions for other counselors. Vera attended only one of Dave's sessions in person and one by phone, yet Dr. Robert found that Vera clearly asserted "a desire to manage what transpires at [Robert's] office."

At her first visit with Dave, Dr. Robert recognized the "tenseness" Dave demonstrated when Chuck and Vera were together. She noted, "[Dave's] anxiety about his role relative to all of this is obvious." At th at meeting, Vera announced that Chuck had "brainwashed" Dave against her . At the beginning of his second session, Dave recited to Dr. Robert th at "he wasn't caught in the middle and he didn't have anything

15

that was worrying him", which Vera had told Dave to say. After asking Dave ifVera wanted him to tell Dr. Robert anything more, Dave stated:

The first one denied [sic] he h ad been forbidden to call his biological father dad at his house. Secondly, say that his stepdad never hit him which th at's kind of a confusing point. Number three, say that no one says bad things about dad. Number four , says he doesn't need to come here. Number five, says he can call dad from mom's house but doesn't want to.

Dr. Robert informed Vera that her attempt to have Dave carry her messages was not helpful because it would continue Dave's feelings ofbeing caught in the middle ofVera and Chuck's problems. However, Dave carried the same message from Ver a at the next sessiOn.

Dr. Robert r ecognized several problems with Vera's beh avior toward Dave that were not in Dave's best interest , e.g., her animosity toward Chuck, refusing to allow Dave to phone Chuck and take his calls, Vera's forcing Dave to change clothes before every visitation. Dr. Robert concluded that Dave showed unusual anxiousness caused by the tension between Chuck and Vera. Essent ially, Dave knew that his mother hated his father and was upset with his mother for her animosity toward Chuck. In contrast, Dave described his relationship with Chuck in only positive terms. Dr. Robert gave Dave the opportunity to voice his frustration with his mother and showed positive progress as a r esult. Dave began to improve both socially and at school after Dr. Robert's influence.

For almost three years, Chuck has taught the court-mandated "Children in the Middle" program for Iowa community colleges. Through this course, he has taught parents the importance of communication for the sake of t heir children in a post· divorce setting; that children should not be used as messengers for the other parent; t hat non-custodial parents cannot be demanding and intrusive on t he other parent's life. That positive action will benefit children who, t hrough no cause of their own, find themselves in a difficult situation and it never benefits the situation to maintain the animosity between ex·spouses.

Unlike Vera, Chuck heeded Chief Judge Sackett's and Judge Rigby's admonitions to improve his relationship with Vera to promote Dave's best interests. Chuck has an extraordinarily strong relationship with Dave considering Vera's efforts to undermine it. Calling him "T" as term of endearment, Chuck visits Dave at school when he can, makes routine contact with his teachers and administrators, and never misses Dave's extracurricular activities. Chuck is even·handed and fair with Dave when discipline is necessary.

Chuck provides a good and stable home for Dave and Dave is well suited for primary residence with Chuck. In comparison, Vera has moved with Dave eight times since t he parties divorced. Chuck has never missed a monthly child support payment. Chuck encourages Dave's relationship with his mother in several ways. First, by giving her first right as Dave's sitter. He would grant all reasonable additional visitation rights. Chuck would allow Dave to talk on the phone with Vera. He would

16

keep her informed and encourage her participation in Dave's education. Further, he would invite and encourage her to participate in family functions, among other things. Chuck helps Dave make cards and letters for Vera for holidays and her birthday.

On January 12, 2012, Dave celebrated his birthday early with a bowling party thrown by Chuck. On January 8, 2012, Chuck wrote a letter to Vera inviting her to Dave's party. When Dave gave Vera the invitation when she picked Dave up at the end of Chuck's visitation, Vera threw it in the back seat saying, "This is a bunch of crap."

As a professional educator with an expertise in reading development, Chuck is best suited to help Dave through his academic problems and successes. His school district has significant programs to help children with r eading difficulties, including "Reading Recovery". Considering Dave's recent difficulties in school, he would have a team working with him, teachers, administrators, and other special care that is not available to Dave through Vera's school district. Chuck would consult with Vera on all significant decisions affecting Dave. In the past two years, Chuck has grown in maturity and moved beyond the petty fighting with Vera. If Chuck ever showed his emotions with Vera, it was only through frustration from the wall that Vera has built and maintained against any possibility of civil communication between Chuck and Vera.

17

2013 Family Law Seminar

Documents