In re Marriage of Weltz

IN THE COURT OF APPEALS OF IOWA

No. 23-0136
Filed July 13, 2023

IN RE THE MARRIAGE OF BRIAN LEIGH WELTZ
AND CHELSEY WELTZ

Upon the Petition of
BRIAN LEIGH WELTZ,
Petitioner-Appellant,

And Concerning
CHELSEY WELTZ,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Hardin County, John J. Haney,

Judge.

A husband appeals the physical care and spousal support provisions of the

parties’ dissolution decree. AFFIRMED.

C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.

Dani L. Eisentrager, Eagle Grove, for appellee.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
2

SCHUMACHER, Presiding Judge.

Brian Weltz appeals the physical care and spousal support provisions of the

parties’ dissolution decree. We affirm the district court’s award of physical care of

the parties’ two children to Chelsey Weltz. We also affirm the provision that

requires Brian to pay spousal support of $1000 per month for thirty-six months.

We determine Chelsey is entitled to appellate attorney fees of $5650.

I. Background Facts & Proceedings

Brian and Chelsey were married in 2016. They have two children, born in

2017 and 2020. The parties met while they were both working at a retail store in

Belmond. Brian was in the retailer’s management program, which required him to

move from store to store. The family was in Decorah for two years, Tama for two

years, Red Oak for three years, and then Eldora. Brian became the manager of

the store in Eldora, where his parents live. Chelsey worked part-time for the retailer

during the marriage and took care of the children.

The parties separated in March 2022, and Brian filed a petition for

dissolution of marriage. Chelsey moved back to Belmond, where her family lives.

She had concerns about Brian’s use of alcohol and other substances. An order

on temporary matters, filed on May 11, granted the parties joint physical care, with

each party having the children for one week at a time. The temporary order stated,

“Neither party shall consume alcoholic beverages during their visitation period with

the children.” Brian was ordered to pay $655.89 per month in temporary child

support.
3

The dissolution hearing was held on November 9 and 10.1 Brian was forty-

one years old at the time of the hearing. He has a base salary of $80,782 but also

receives bonuses. His total income in 2021 was $99,929. Chelsey was thirty-six

years old at the time of the hearing. She earned $6133 in 2021 as a part-time

cashier. If Chelsey worked full time, she would earn about $30,300 per year.

Brian had a substance-abuse evaluation that diagnosed him with mild

alcohol use disorder and cannabis use disorder in early remission. He participated

in a short-term outpatient program. Brian testified that he continued to drink

alcohol while the children were in his care. He stated he did not believe the

temporary order prohibited him from drinking after the children were asleep. He

stated he had not used marijuana gummies “in a while.”

The district court granted Chelsey physical care of the children. Brian was

awarded visitation on alternating weekends, alternating weeks in the summer, and

alternating holidays. He was ordered to pay child support of $1421 per month.

Brian was also ordered to pay spousal support of $1000 per month for thirty-six

months. Brian appeals the physical care and spousal support provisions of the

parties’ dissolution decree.

II. Standard of Review

We review dissolution of marriage decrees in equity. In re Marriage of

Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). In equitable actions, our review

is de novo. Iowa R. App. P. 6.907. “In such cases, ‘[w]e examine the entire record

and adjudicate anew rights on the issues properly presented.’” Knickerbocker, 601

1Prior to the dissolution hearing, the parties stipulated to joint legal custody of the
children and a division of marital property.
4

N.W.2d at 50–51 (alteration in original) (citation omitted). “In equity cases,

especially when considering the credibility of witnesses, the court gives weight to

the fact findings of the district court, but is not bound by them.” Iowa R. App.

P. 6.904(3)(g).

III. Physical Care

Brian claims the district court should have placed the children in his physical

care, rather than in Chelsey’s physical care. The parties agreed joint physical care

was not feasible based on the distance between their residences.

The court considers the factors in Iowa Code section 598.41(3) (2022) and

In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), in determining a

physical care placement in the best interests of children. Courts look for a

placement that will best promote the long-term physical and emotional health of

the children. In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). Each

decision is based on the unique facts of the case. Id. “In child custody cases, the

first and governing consideration of the courts is the best interests of the child.”

Iowa R. App. P. 6.904(3)(o); In re Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa

Ct. App. 2020).

The court determined Chelsey was the primary caregiver for the children

during the marriage. The court also found, “Chelsey shows a greater capacity to

communicate concerning the children’s needs than Brian.” The court noted Brian
5

took one of the children to the doctor after the first day of trial but did not tell

Chelsey about it.2 The court stated:

Brian also made the unilateral decision to have the children baptized,
testifying that, “I took the liberty.” He gave no consideration to
Chelsey’s opinion or any of the concerns she raised. Chelsey’s
testimony and the documentary evidence provided tends to support
Chelsey’s contentions in this regard. Brian has also enrolled the
children in various activities without communication or consultation
with Chelsey. He attempted to interfere with Chelsey’s enrollment of
[the younger child] in preschool in Belmond. The Court also watched
him roll his eyes and make frequent dramatic facial expressions
during Chelsey’s testimony at trial. He gave no credit to Chelsey for
the children’s growth and development when in her care.

The court furthermore noted, “Brian presented as angry and resentful at times

during trial. His texts and other correspondence also support this observation. He

gave Chelsey little or no credit for raising smart and well-developed children.”

Although we are not bound by the district court’s factual findings, we give

weight to the court’s credibility findings. See Iowa R. App. P. 6.904(3)(g). “There

is good reason for us to pay very close attention to the trial court’s assessment of

the credibility of witnesses. A trial court deciding dissolution cases ‘is greatly

helped in making a wise decision about the parties by listening to them and

watching them in person.’” In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa

1984) (citation omitted). We give weight to the district court’s finding that Chelsey

was a more credible witness than Brian. See Iowa R. App. P. 6.904(3)(g).

We agree with the district court’s conclusion that the children should be

placed in Chelsey’s physical care. Brian’s unilateral decisions about the children,

2 The court mistakenly stated the child had been taken to the emergency room, but
this does not change the fact that Brian did not inform Chelsey the child needed
medical attention for a fever and sore throat.
6

his statements that Chelsey did not contribute to the development of the children,

and his attitude during the trial, show he did not respect Chelsey. Due to this lack

of respect, he is less likely to support Chelsey’s relationship with the children. It

also contributes to the communication problems between the parties. In addition,

there are also concerns because Brian continued to drink alcohol while the children

were in his care although the temporary order specifically stated, “Neither party

shall consume alcoholic beverages during their visitation period with the children.”

IV. Visitation

Brian raises an alternative argument, claiming that if the children are not

placed in his physical care, he should have more visitation with the children. He

asks to have the children over all of their summer vacation from school, with

Chelsey having visitation on alternating weekends.

Generally, liberal visitation with the noncustodial parent is in the children’s

best interests. Iowa Code § 598.41(1)(a); In re Marriage of Stepp, 485 N.W.2d

846, 849 (Iowa Ct. App. 1992). “The feasible exercise of a parent’s right of

visitation should be safeguarded by a definite provision in the order or decree of

the court awarding custody of the child to another person.” Smith v. Smith, 142

N.W.2d 421, 425 (Iowa 1966) (citation omitted); see also In re Marriage of

Kanetomo, No. 19-2008, 2020 WL 5650593, at *4 (Iowa Ct. App. Sept. 23, 2020).

A court should fashion a visitation schedule that is in the children’s best interests.

In re Marriage of Hansen, 886 N.W.2d 868, 875–76 (Iowa Ct. App. 2016).

We determine the summer visitation schedule set out in the parties’

dissolution decree is in the children’s best interests. The decree stated:
7

During the summer when school is not in session, the parties
will alternate custody weekly. The parties shall use a local school
calendar for the area the children reside in for reference to start
summer visitations. These visitations shall begin on Friday at 5:00
p.m. and end the following Friday at 5:00 p.m. The party beginning
the weekly visitation shall be responsible to pick the children up at
the other party’s residence.

This schedule gives both parties time with the children over the summer, allowing

both parties an opportunity to go on vacation or engage in other activities with the

children. We affirm the district court’s visitation schedule.

V. Spousal Support

Brian claims the district court should not have awarded spousal support to

Chelsey. He states she can support herself by working full time and she does not

need an award of spousal support. Brian contends Chelsey does not need to have

a period of reeducation or retraining to be self-sufficient.

“Our cases repeatedly state that whether to award spousal support lies in

the discretion of the court, that we must decide each case based upon its own

particular circumstances, and that precedent may be of little value in deciding each

case.” In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015). The court

considers the statutory factors in Iowa Code section 598.21A(1)3 and makes an

3 The factors found in section 598.21A(1) are as follows:
a. The length of the marriage.
b. The age and physical and emotional health of the parties.
c. The distribution of property made pursuant to section
598.21.
d. The educational level of each party at the time of marriage
and at the time the action is commenced.
e. The earning capacity of the party seeking maintenance,
including educational background, training, employment skills, work
experience, length of absence from the job market, responsibilities
for children under either an award of custody or physical care, and
8

equitable award of spousal support. See In re Marriage of Pazhoor, 971 N.W.2d

530, 538 (Iowa 2022). We will disturb the district court’s award of spousal support

“only when there has been a failure to do equity.” Gust, 858 N.W.2d at 406 (citation

omitted).

An award of spousal support may come within the categories of

rehabilitative, reimbursement, traditional, transitional, or a hybrid of these types.

Pazhoor, 971 N.W.2d at 539–40. Transitional spousal support was recently

recognized by the Iowa Supreme Court,

Transitional alimony can ameliorate inequity unaddressed by the
other recognized categories of support. Divorcing spouses must
adjust to single life. If one is better equipped for that adjustment and
the other will face hardship, then transitional alimony can be awarded
to address that inequity and bridge the gap. We now formally
recognize transitional alimony as another tool to do equity.

Id. at 542.

“Rehabilitative alimony is ‘a way of supporting an economically dependent

spouse through a limited period of re-education or retraining following divorce,

thereby creating incentive and opportunity for that spouse to become self-

the time and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
f. The feasibility of the party seeking maintenance becoming
self-supporting at a standard of living reasonably comparable to that
enjoyed during the marriage, and the length of time necessary to
achieve this goal.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning
financial or service contributions by one party with the expectation of
future reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an
individual case.
9

supporting.’” In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004)

(citation omitted).

On the spousal support issue, the district court stated:

Brian has clearly been the primary breadwinner for the family.
Their moves during the marriage were driven by his career
advancement with [the retailer]. Chelsey’s role, by agreement of the
parties, has been, for the most part, as a homemaker and primary
caretaker for the children. She worked limited part-time hours during
their various moves to avoid childcare costs. She clearly supported
Brian in his advancement opportunities with [the retailer]. He earns
significantly greater income than Chelsey.
This case presents a short to medium-term marriage of
approximately 6 1/2 years. Having considered all the relevant
factors, the Court FINDS Brian should pay Chelsey
transitional/rehabilitative alimony in the amount of $1000 per month
for a period of three (3) years from entry of decree herein. The Court
finds this will assist Chelsey to become self-supporting and assist
her in transitioning from married life to single life without undue
hardship.

We concur in the court’s reasoning.4 Chelsey supported Brian’s quest to

become a store manager by moving with him from town to town, at the expense of

her own career. The parties agreed Chelsey would only work part time so that the

children did not need to be placed in daycare. As a result of the parties’ decisions,

Brian has a much greater earning capacity than Chelsey. And even working full-

time hours, Chelsey’s income will be a third of Brian’s income. The district court’s

decision awarding alimony for a limited period of three years does not fail to do

4 We recognize the time limitation that the supreme court has placed on transitional
alimony. See In re Marriage of Sokol, 985 N.W.2d 177, 187 (Iowa 2023) (“Because
transitional spousal support is focused on solving a short-term liquidity issue, a
transitional spousal support award generally should not exceed one year in
duration.”); see also In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.
App. 1997) (“An alimony award will differ in amount and duration according to the
purpose it is designed to serve.”). Here, the district court crafted a hybrid alimony
award of transitional and rehabilitative in determining alimony should be paid for
three years.
10

equity and, therefore, we do not disturb the court’s award of spousal support. See

Gust, 858 N.W.2d at 406. We affirm the decision of the district court.

VI. Appellate Attorney Fees

Chelsey asks for attorney fees for this appeal. She submitted an affidavit

stating she has appellate attorney fees of $5650.

Appellate attorney fees are awarded upon our discretion and are not a

matter of right. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

When considering whether to exercise our discretion, we consider “the needs of

the party seeking the award, the ability of the other party to pay, and the relative

merits of the appeal.” Id. (citation omitted).

Chelsey has limited ability to pay her appellate attorney fees while Brian

has the ability to contribute to Chelsey’s attorney fees. We also note that Chelsey

was required to defend the district court’s decision on appeal. We conclude Brian

should be required to pay Chelsey’s appellate attorney fees of $5650.

AFFIRMED.