CourtListener 2688177

IN THE COURT OF APPEALS OF IOWA

No. 3-1168 / 13-0639
Filed March 12, 2014

IN RE THE MARRIAGE OF
KELLI DAWN HILL HUNT
AND TONY ROBERT HUNT

Upon the Petition of
KELLI DAWN HILL HUNT, n/k/a KELLI DAWN HILL,
Petitioner-Appellant,

And Concerning
TONY ROBERT HUNT,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Richard B. Clogg,

Judge.

Kelli Hill Hunt appeals the physical care and property distribution

provisions of the decree dissolving her marriage to Tony Hunt. AFFIRMED.

Diane L. Dornburg, Des Moines, for appellant.

Kodi A. Brotherson and Stacey N. Warren of Babich Goldman, P.C., Des

Moines, for appellee.

Heard by Potterfield, P.J., and Doyle and Bower, JJ.
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POTTERFIELD, P.J.

Kelli Hill Hunt (n/k/a Kelli Hill) appeals the physical care and property

distribution provisions of the decree dissolving her marriage to Tony Hunt. She

argues the district court erred in denying her request for a custody investigation,

awarding joint physical care, and in the division of the parties’ assets.1 Tony

requests appellate attorney fees. We affirm finding the court properly appointed

a guardian ad litem for the children, properly awarded the parties joint physical

care, and equitably divided the parties’ assets. We grant Tony’s request for

appellate attorney fees.

I. Facts and proceedings.

Kelli and Tony knew each other during childhood and began their romantic

relationship while in high school. The two married in 1996, and separated in

2012. They have three children ranging in age from eight to thirteen years old.

Kelli has a Ph.D. in psychology and works as a child psychologist. Tony is

employed as a quality analyst.

Kelli filed a petition for separate maintenance in April 2012. Both parties

participated in mediation on May 31, 2012. The parties signed a mediation

agreement, which included a joint physical care arrangement where both parents

would rotate in and out of the children’s home. Several months later, Kelli

requested a hearing on temporary matters, which was held on October 16, 2012.

The court order continued the joint physical care arrangement with the two

1
Kelli also argues the court erred in its award of temporary joint physical care after the
pretrial hearing on temporary matters. This issue is moot. See In re Marriage of Denly,
590 N.W.2d 48, 50 (Iowa 1999) (“Temporary custody orders . . . are subsumed in the
final custody determination and are not judgments that can be separately enforced.”).
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parents rotating time in the children’s home. On November 21, Kelli filed an

application for a custody evaluation, alleging a clinical psychologist was

necessary to assess the children’s needs in light of her perception Tony was

abusing alcohol. She proposed a doctor in Fort Dodge conduct the evaluation to

ensure no conflict with her own practice. Tony resisted the motion, arguing the

evaluation would only prolong the already protracted dissolution proceedings.

The court denied the request to appoint the custody evaluator and instead

appointed a guardian ad litem (GAL) to represent the children’s interests in the

proceedings. The GAL conducted a series of interviews with the family

members, teachers, and counselors and provided a report to the court. Trial on

the petition for dissolution was held February 6 and 7, 2013. The GAL, Tony,

Kelli, a family services worker, family friends, and siblings of the parties testified.

On February 21, 2013, the court entered its decree dissolving the marriage.

Among other things, the decree provided that the parties would continue joint

physical care of the children and adopted Tony’s proposed division of assets.

Kelli appeals.

II. Analysis.

Our review of dissolution of marriage proceedings is de novo. In re

Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the

findings of the district court, especially to the extent credibility determinations are

involved.” Id. We review the decision to appoint a guardian ad litem or custody

evaluator under Iowa Code section 598.12 (2011) for an abuse of discretion. In

re Marriage of Teepe, 271 N.W.2d 740, 744 (Iowa 1978).
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A. Denial of request for custody evaluator.

Kelli first argues the district court erred in appointing a GAL to represent

the children’s interests instead of a custody evaluator. Specifically, she argues

the court should have appointed her proposed investigator from Fort Dodge. In

her application for a custody evaluation, Kelli stated, “It is in the children’s best

interest that they be evaluated by a neutral third-party professional to assess

their development, adjustment, preferences and other matters related to their

long-term best interests.” While Kelli argues the custody evaluator might have

been more thorough, appointing her proposed investigator would have cost the

parties more time, money, and problems involving transportation to another city.

The trial court did not abuse its discretion. See id.

B. Joint physical care.

Next, Kelli argues the district court erred in its award of joint physical care

of the children. When determining whether joint physical care is appropriate, our

concern is for the best interests of the children; to evaluate this we look to the

factors delineated by the court in Hansen. These factors are: stability and

continuity of the parenting relationship, the ability of the parties to communicate

and show respect, the degree of conflict between the parties, and the degree of

agreement as to general daily matters. Hansen, 733 N.W.2d at 679-99. Upon

our de novo review of the record, giving deference to the trial court’s credibility

determination, we agree with the court that the factors show joint physical care is

appropriate here. The children are thriving in the shared-care arrangement that

has been in place since the mediation agreement. The parties communicate

effectively by e-mail and text message; both reported to the GAL that
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communication would be easier after the divorce proceedings were finalized.

Kelli points to the parties’ participation in marriage counseling as evidence of

their degree of conflict; however, this shows the parties’ willingness to work

together through conflict.

Kelli argues that “it may superficially appear that the family might meet the

minimum standards for joint physical care under the Hansen criteria, a deeper

and more realistic analysis of the facts . . . dictates that joint physical care is not

appropriate.” She draws our attention to the longer list of considerations detailed

in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). She argues

that when we look to these factors—specifically those relating to the

characteristics and parenting abilities of the parents—we cannot find joint care is

in the children’s best interests. She argues the GAL report supports the

proposition that the children are closer to their mother than father. However,

when asked about the differences between her observation of the children in the

home first with Kelli then with Tony, the GAL replied “I didn’t really feel there was

a whole lot of difference when I was there either time.” Kelli points to her

perception of Tony’s drinking, however, the GAL did not find independent

evidence to support the claim, and the court ordered both parents not to drink

while the children are in their custody. Looking to the Winter factors as well,

then, we find the joint physical care arrangement is in the best interests of the

children. See Winter, 223 N.W.2d at 166-67.

C. Property distribution.

Kelli appeals the equalization payment provision of the property

distribution provision of the decree. Tony argues her appeal is not preserved, as
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she has already paid the equalization payment in full. We find this argument is

contrary to the policy of our courts. See Peoples Trust & Sav. Bank v. Sec. Sav.

Bank, 815 N.W.2d 744, 754 (Iowa 2012) (“We think that in the modern economic

and business environment, a party ought to be able to avoid unnecessary costs

and expenses by simply paying a judgment without losing a right to appeal.”).

We therefore continue to the merits of Kelli’s claim.

Kelli specifically takes issue with the court’s order for her to make an

equalization payment of $33,535.95 to Tony, because she argues she could not

make the payment without selling the marital home. Kelli was awarded the

marital home, $50,217.45 of Tony’s retirement account, and 82.46% of

consolidated student loans with a balance of $3385. She argues this division

was inequitable for several reasons: the court used an excessive market

valuation of the parties’ marital home, the division of the 401(k) could result in a

tax burden if Kelli took a distribution from the account, and the division of the

student loans should have been half to each. Kelli argues, “[I]n order to achieve

an equitable distribution of property and debts, [Tony] should be awarded the

entire $150,000 balance of his 401(k) and pay [her] an equalizing cash payment

of $29,000.” However, at trial she testified that her idea of an equitable

distribution would be “adding up all the assets and splitting that in half which

would make my having the equity in the house, keeping my 403(b) and him

owing me some money from his 401(k).” When asked whether she could

reimburse Tony for his share of the home by refinancing the home, she replied

that she thought she could. She also testified she had a line of credit available

for that purpose.
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Kelli argues on appeal the district court relied on an inaccurate market

valuation of the home of $218,000—a number proposed by Tony based on a

listing of a similar home in the area. A fairer number, she argues, would be

$197,470—the home’s assessed value for tax purposes. In her affidavit of

financial status, she listed the market value of the home as $220,000. The

property division ordered by the court resulted in Kelli receiving $132,253.59 and

Tony receiving $133,671.21.

A trial court’s division of assets must be equitable—this does not

necessarily mean the division must be equal. Hansen, 733 N.W.2d at 702. In

that case, our supreme court declined to disturb the district court’s valuation of a

marital home, noting: “Ordinarily, a trial court’s valuation will not be disturbed

when it is within the range of permissible evidence. . . . Although our review is de

novo, we ordinarily defer to the trial court when valuations are accompanied by

supporting credibility findings or corroborating evidence.” Id. at 703 (internal

citations omitted). We do not disturb the trial court’s decision to rely on Tony’s

valuation. See id. Further, the court in its division noted that despite Tony’s

income being less than Kelli’s, he did not request any other support.

We conclude the property distribution was equitable.

D. Appellate attorney fees.

Tony requests appellate attorney fees. In deciding whether to award a

party appellate attorney fees, 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.”
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In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). We award Tony $1000

in appellate attorney fees.

AFFIRMED.