In re the Marriage of Ficek

IN THE COURT OF APPEALS OF IOWA

No. 17-2028
Filed September 12, 2018

IN RE THE MARRIAGE OF CHRISTI ANNE FICEK
AND LAWRENCE PETER FICEK, JR

Upon the Petition of
CHRISTI ANNE FICEK,
Petitioner-Appellant,

And Concerning
LAWRENCE PETER FICEK, JR.,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Kevin McKeever,

Judge.

Christi Ficek appeals from the decree dissolving her marriage to Lawrence

Ficek. AFFIRMED.

John C. Wagner of John C. Wagner Law Offices, PC, Amana, for appellant.

Caitlin L. Slessor and Kerry A. Finley of Shuttleworth & Ingersoll, PLC,

Cedar Rapids, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

Christi Ficek appeals from a decree dissolving her marriage to Lawrence

Ficek. Christi argues the district court erred by granting the parties joint physical

custody of their child and awarding Lawrence part of Christi’s retirement account

and pension account. Because joint physical care is in the best interests of the

child, we affirm the decree’s physical care arrangement. Also, because of

Lawrence’s financial and nonfinancial contributions to the marriage, we affirm the

district court’s property distribution. We decline to award either party appellate

attorney fees and tax costs to both parties equally.

I. Background Facts and Proceedings

Christi, born in 1974, and Lawrence, born in 1969, were married in 2007.

They have one child together, L.M.F., born in 2007.1 Christi is employed as the

director of operations at an employee benefits sales company earning

approximately $91,250 per year. Lawrence is self-employed and earns

approximately $40,000 per year.

Christi filed a petition for dissolution of the marriage in December 2015. A

trial was held, beginning on July 5, 2017. On July 27, the district court filed a

decree of dissolution that ordered joint legal custody and joint physical care of their

child. Christi was ordered to pay $390.60 per month in child support. Lawrence

was awarded one-half of the marital portion of Christi’s retirement account and one

half of her pension account. Christi appeals.

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Christi has adult twin girls that are not children of this marriage. Lawrence had one
biological child from a previous marriage and acted as the parent to another child; both
children are deceased.
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II. Standard of Review

We review dissolution actions de novo as they are heard in equity. In re

Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “[W]e examine the

entire record and adjudicate anew the issue of the property distribution.” Id. While

we give weight to the findings of the district court, particularly concerning the

credibility of witnesses, we are not bound by those findings. Id. However, “[w]e

will disturb the district court’s ruling only when there has been a failure to do

equity.” Id. (quotation marks and citations omitted).

III. Physical Care

The question of physical care must be determined based on what is in the

best interest of the child. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa

2007). “The ultimate objective of a physical care determination is to place the child

in the environment most likely to bring him to healthy mental, physical, and social

maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010). Stability

and continuity in caregiving are primary factors in determining an award of physical

care. Hansen, 733 N.W.2d at 696 (citing In re Marriage of Decker, 666 N.W.2d

175, 178–80 (Iowa Ct. App. 2003)). Past caretaking patterns, including primary

caregiving, weigh heavily in custody matters. Id.

The district court gave the parties joint physical care of the minor child.

Christi contends the district court should have granted her physical care. She

argues that she primarily tended to the needs of their child throughout his early

years and Lawrence was absent for significant periods of time prior to their

separation. The district court found that both parents love and care for their child
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and both have a strong bond with him that results in shared care being in the child’s

best interests.

Christi testified that she would take L.M.F. to appointments and school

approximately “ninety percent” of the time. She testified that Lawrence attended

L.M.F.’s appointments “three or four times” and he would not sign off on L.M.F.’s

homework for school while she made sure that it was done. In addition, Christi

testified that she would do “ninety percent” of the feeding when L.M.F. was a

newborn. Christi also described Lawrence as possessing a “short tempter” and

described he could be loud at times and “pinch L.M.F.’s ear” when L.M.F. was not

acting appropriately. Christi testified that Lawrence’s temper affected the parties’

communication and there were instances where Lawrence would speak ill about

her in front of L.M.F. by inappropriately involving him in conversations about the

parties’ court dates.

Lawrence agreed that Christi probably did more with L.M.F. when L.M.F.

was little but asserts that he did a lot of the work with L.M.F. when L.M.F. was

entering pre-school, about age three. Lawrence testified that around that time,

Christi was earning promotions and spending a lot of time travelling. Lawrence

indicated that he is active in L.M.F.’s schoolwork and, although he did not see or

sign as many school documents and homework assignments as Christi did, he

was present in the classroom at times and attended “every single” parent–teacher

conference. He disputed Christi’s claim that he had a “short temper,” and he noted

Christi used similar forms of discipline as he did, including washing L.M.F.’s mouth

out with soap. Lawrence also disputed Christi’s assertion that they had
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communication problems by providing numerous civil text messages and photos

relating to visitation, health, and various schedules for L.M.F.

Upon our review of the record, we agree with the district court that joint

physical care is in L.M.F.’s best interests. We give weight to the district court’s

findings on the credibility of witnesses. In re Marriage of Witten, 672 N.W.2d 768,

778 (Iowa 2003). From both parties’ testimony, it is clear that Christi provided a

majority of L.M.F.’s care when he was very young, but it is also clear that Lawrence

has since provided care and is engaged in various activities with L.M.F. The district

court found that any conversations about these legal proceedings “may have been

ill advised” but “were not the product of any ill intent.” We agree with the district

court’s assessments of the many back-and-forth complaints the parties have about

each other.

We also find that it is in L.M.F.’s best interest for his parents to continue to

have his joint physical care. This is the environment that will likely bring L.M.F. to

healthy mental, physical, and social maturity. Accordingly, we affirm the district

court’s order to continue the joint physical care arrangement.

IV. Retirement Account

Christy next asserts Lawrence should not have been awarded a portion of

her retirement account because he failed—primarily financially—“to contribute to

the marriage.” We examine the entire record and adjudicate anew the issue of

property distribution. McDermott, 827 N.W.2d at 676. Marital property is divided

equitably, considering the factors in Iowa Code section 598.21(5) (2015). See id.

at 678. Among the statutory factors considered are the length of marriage,

premarital property, contributions of each party to the marriage, age of the parties,
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emotional and physical health of the parties, earning capacity of each party, and

others. See Iowa Code § 598.21(5). The court must consider both financial and

non-financial contributions in determining an equitable distribution. In re Marriage

of Fennelly, 737 N.W.2d 97, 103–04 (Iowa 2007).

The district court awarded Lawrence a portion of Christi’s retirement

account and pension account through Qualified Domestic Relations Orders.

Christi filed a motion to amend and enlarge, asserting Lawrence wasted marital

assets and it was inequitable for him to receive any part of her retirement or

pension account. See Iowa Code § 598.21(5)(c) (dividing all property equitably by

considering the contribution of each party and giving value to each contribution in

homemaking and child care services). Christi primarily argues that she contributed

more financially to the marriage and Lawrence’s tax issues created a burden on

their finances. However, marriages do not come with a ledger. Fennelly, 737

N.W.2d at 103 (citing In re Marriage of Miller, 552 N.W.2d 460, 464 (Iowa Ct. App.

1996)). Spouses may make many contributions to their marriage, including love,

support, and companionship, and their total contributions cannot be reduced to a

dollar amount. Id. at 104. “Financial matters . . . must not be emphasized over the

other contributions made to a marriage in determining an equitable distribution.”

Id.

The district court held:

[Christi] claims that [Lawrence] has wasted marital assets
because he was underemployed and irresponsible with his finances
and tax responsibilities. The court does not agree. [Lawrence] is
obviously not good at managing money and has not chosen the most
lucrative career for himself. However, he has contributed to the
marriage based on his financial ability to do so. He certainly could
have done a better job, but he did make contributions. Therefore,
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the court finds that this was not a situation that can be classified as
marital waste.

In this case, both parties contributed to the marriage in ways that cannot be

reduced to a dollar amount. Both worked outside the home, including Lawrence’s

travel to Texas and Des Moines for work. Both cared for the children, especially

L.M.F., who has developed a strong bond with both of his parents.

Considering all of the facts and circumstances of this case, we find the

district court equitably divided the parties’ marital property. Despite Christi

providing more for the marriage financially, Lawrence worked or attempted to find

work, and he made nonfinancial contributions over the life of the marriage. He did

not shirk his duties. See id. Accordingly, we affirm the district court’s division of

the retirement account and pension account.

V. Appellate Attorney Fees

Christi and Lawrence both request appellate attorney fees. “Appellate

attorney fees are not a matter of right, but rather rest in this court’s discretion.” In

re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Whether appellate

attorney fees should be awarded depends upon factors which include “the needs

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

merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993).

We have considered these factors and decline to grant either party attorney fees.

Costs shall be taxed equally to both parties.

VI. Conclusion

Because joint physical care is in the best interests of L.M.F. we affirm the

decree’s physical care arrangement. Also, because of Lawrence’s financial and
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nonfinancial contributions to the marriage, we affirm the district court’s property

distribution. We decline to award either party appellate attorney fees and tax costs

to both parties equally.

AFFIRMED.

Tabor, J., concurs; Danilson, C.J., partially dissents.
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DANILSON, Chief Judge (concurring in part and dissenting in part).

I respectfully dissent on the issue of physical care, but concur in all other

respects. I would reverse in part to award Christi physical care of the minor child.

Christi has far more actively parented the child than has Lawrence. Christi has

also maintained stable employment and a residence. Also, she is well organized

in her life’s affairs and tends to the child’s educational needs. Lawrence, on the

other hand, lacks stability in his employment, residence, and financial affairs. He

acknowledges a lack of patience and has shown little responsibility towards the

child’s academic needs.