In re Marriage of Rocksvold and Orvella

IN THE COURT OF APPEALS OF IOWA

No. 18-0196
Filed December 5, 2018

IN RE THE MARRIAGE OF EMILY ROCKSVOLD
AND ANDREW ORVELLA

Upon the Petition of
EMILY ROCKSVOLD,
Petitioner-Appellant,

And Concerning
ANDREW ORVELLA,
Respondent-Appellee.
________________________________________________________________

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

Bauercamper, Judge.

Emily Rocksvold appeals, and Andrew Orvella cross-appeals, from the

decree dissolving their marriage. AFFIRMED AS MODIFIED ON APPEAL;

AFFIRMED ON CROSS-APPEAL.

Erik W. Fern of Berry Law Firm, Decorah, for appellant.

Crystal L. Usher of Nazette, Marner, Nathanson & Shea, LLP, Cedar

Rapids, for appellee.

Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2

VAITHESWARAN, Judge.

Parties to a divorce decree appeal and cross-appeal from the property

distribution, spousal support, custody, visitation, and attorney-fee provisions of the

decree.

I. Background Facts and Proceedings

Emily Rocksvold and Andrew Orvella married in 2011 and divorced in 2017.

They had one child, born in 2012.

Rocksvold was thirty-nine years old at the time of trial. She obtained a

Bachelor of Science degree in geology and held various jobs over the years. When

she met Orvella, she was working for an environmental and geotechnical

consulting and engineering firm in Minnesota as an environmental scientist. She

earned $48,000 a year “plus quarterly bonuses based on billable hours.” The

position carried health and retirement benefits. Shortly before her marriage to

Orvella, Rocksvold resigned her position. In a letter of resignation, she stated her

decision was precipitated in part by her wish to better support Orvella and his 2000-

acre farming operation. She testified to Orvella’s assurances that he would be

able to support her, as well as her child from another relationship, on his income

of approximately $150,000 annually.

Following the marriage, Rocksvold worked briefly in her field. At the time of

trial, she was employed as a substitute para-educator in two local school systems.

Orvella graduated from high school in 2004 and attended a college of

business for one year. After that point, he began farming with his father. He

entered the cattle business for a year but returned to crop farming. At the time of

trial, he worked as a truck driver.
3

Rocksvold filed the dissolution petition in 2015. Until the filing, she served

as primary caretaker of the child. After the filing, the district court granted the

parents temporary joint physical care of the child. The court also ordered Orvella

to pay temporary spousal support of $700 per month as well as child support.

Two-and-a-half years elapsed between Rocksvold’s filing of the petition and

trial. During that period, Rocksvold filed several motions to compel disclosure of

Orvella’s income and assets. Some were resolved by agreement and others were

granted by the court.

Following trial, the district court divided the parties’ assets and liabilities but

declined to award Rocksvold a cash equalization payment. The court also

declined to award her spousal support. The court granted Rocksvold physical care

of the child and ordered visitation with Orvella. Orvella was ordered to pay $1500

towards Rocksvold’s trial attorney fees.

II. Cash Equalization Payment

Rocksvold contends the district court acted inequitably in declining to grant

her a cash equalization payment. She seeks $200,000, payable in annual $50,000

increments. She grounds the request on Orvella’s transfer and removal of assets

following her filing of the dissolution petition and his failure to fully disclose his

assets.

“A court may generally consider a spouse’s dissipation or waste of marital

assets prior to dissolution when making a property distribution.” In re Marriage of

Kimbro, 826 N.W.2d 696, 700 (Iowa 2013). “The dissipation doctrine applies when

a spouse’s conduct during the period of separation ‘results in the loss or disposal
4

of property otherwise subject to division at the time of divorce.’” Id. at 700–01

(citation omitted).

Rocksvold established that Orvella dissipated assets. A certified public

accountant she retained as an expert witness prepared a report finding that Orvella

reported “a $499,362 reduction in net worth” during a period after Rocksvold filed

her petition. The expert opined that the reduction did “not appear reasonable since

there were no reported losses from sales of fixed assets and/or any other evidence

of an ‘event’ which would cause such a substantial decrease in net worth over such

a short period of time.” The expert cited several instances of underreported assets.

At trial, the expert first noted issues with Orvella’s cash flow. He stated

there was “something significantly wrong with the numbers that were reported on

Mr. Orvella’s 2015 tax return.” Specifically, he failed to report “approximately

$350,000 of income.” As for Orvella’s net worth, the expert reaffirmed his earlier

conclusion that Orvella’s reduction in net equity occurred after Rocksvold filed her

dissolution petition. When asked if “it appear[ed] that” Orvella had “inaccurately

reported his financial condition,” the expert responded, “I think I can go farther than

saying . . . it appears. Mr. Orvella, in my opinion, has definitely misstated his

financial position.” He testified he was “[v]ery confident” in his conclusion.

The district court found “the appraisal method and conclusions of

[Rocksvold’s] expert to be the most credible evidence on financial issues.” We

give weight to this finding. In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa

2015). We also give weight to the court’s finding that Orvella lacked “credibility

regarding many of his financial transactions.” Id. Based on these findings, we

conclude Roksvold was entitled to a cash property settlement.
5

We turn to the amount. Rocksvold’s expert opined that “the most

appropriate net worth to consider” in the face of Orvella’s underreporting was

$425,637. Rocksvold’s request for $200,000 figure is slightly less than fifty percent

of Orvella’s adjusted net worth. Given the relatively short duration of the marriage

and Orvella’s ownership of the lion’s share of assets brought into the marriage, we

conclude Rocksvold’s proposed figure is too high. A lesser amount is more

equitable.

The primary asset jointly purchased during the marriage was a home. The

couple filed a pretrial stipulation listing the fair market value of the home as

$200,000 and the mortgage as $144,420. This left equity of $55,580. In light of

Orvella’s significant non-disclosures and dissipation of assets, we modify the

dissolution decree to provide that Orvella shall pay Rocksveld the entire home

equity of $55,580 as a cash property settlement within 180 days of the filing of

procedendo.

III. Alimony

Rocksvold contends the district court acted inequitably in declining to grant

her any spousal support. She requests an award of $1500 per month for three

years.

Iowa Code section 598.21A(1) (2015) sets forth the criteria for determining

spousal support. Factors to be considered include the length of the marriage, the

age and physical and emotional health of the parties, the property distribution, the

earning capacity of each party, and any other factors the court may determine to

be relevant. Iowa Code § 598.21A(1).
6

As noted, the marriage was relatively short and the parties were relatively

young. They could engage in full-time employment notwithstanding certain health

conditions. Although we have modified the decree to provide Rocksvold with a

cash property settlement, the fact remains that Rocksvold gave up a well-paying

job with health and retirement benefits to facilitate Orvella’s farming operation.

While Orvella called her motives for leaving into question, Rocksvold’s trial

testimony was corroborated by her pre-marital resignation letter. We are

persuaded Rocksvold has a need for spousal support.

We turn to the amount and duration of the award. Rocksvold testified she

considered searching for degree-related employment following the filing of her

dissolution petition but she likely would have been required to relocate, a factor

that would have made the temporary joint physical care arrangement unworkable.

She also noted the importance of family ties in the area. By the time of trial, she

had elected to pursue training for employment in the vicinity. She was “accepted

to a fast track teaching program” and her goal was “to get [a] teaching degree in

middle school science.” Her decision inured to the benefit of Orvella, who would

have to travel less to see his child.

On our de novo review, we conclude Rocksvold was entitled to a limited

award of spousal support while she established herself in her new career. We

modify the decree to grant her reasonable request of $1500 per month for three

years.

IV. Physical Care

At trial, Orvella requested joint physical care of the child. The district court

implicitly rejected the request after making the following findings:
7

The evidence discloses that these parents are totally lacking
in mutual respect and cooperation in dealing with child care issues.
[Orvella] has resorted to incidents of manipulation and
subterfuge. . . . There is no effective communication between them.
The court finds that [Orvella] is primarily at fault in creating and
prolonging this atmosphere.

On cross-appeal, Orvella contends the court should have granted his

request. While conceding there was “a fair amount of rancor between the parties,”

he argues it stemmed from “financial matters” rather than “custodial matters.” On

our de novo review, we disagree.

As noted, the parties exercised joint physical care pursuant to a temporary

order. Rocksvold testified that, far from improving over time, the exchanges “got

worse.” Neither parent was blameless; both instigated conflict and exacerbated

tensions. Rocksvold conceded as much, stating “we need to work on co-parenting

big time.” While we could elaborate on the numerous failures in co-parenting on a

joint physical care basis, no useful purpose would be served by doing so. Suffice

it to say the arrangement was fraught with difficulties.

Given the parents’ lengthy and largely unsuccessful experience with a joint

physical care arrangement, we conclude the district court acted equitably in

declining to make the arrangement permanent. See In re Marriage of Hansen, 733

N.W.2d 683, 701 (Iowa 2007). We affirm the district court’s decision to grant

Rocksvold physical care of the child.

V. Extraordinary Visitation

The district court awarded Orvella liberal visitation, including weekly

Wednesday evening visits and “[t]wo separate 14 day periods” during the summer.

On cross-appeal, Orvella contends the district court should have granted him
8

extraordinary visitation, including Wednesday overnights and Thursday overnights

following his weekend visitation. He cites the “equal schedule the child had

become accustomed to and the frequent contact he had with his father for two and

one-half years.”

Visitation exceeding 127 days per year would entitle Orvella to an

extraordinary visitation credit on his child support obligation. See Iowa Ct. R. 9.9.

Given the parents’ strained relationship and their failure to communicate

effectively, we conclude additional court-ordered visits were not in the child’s best

interests.

VI. Trial Attorney Fees

Rocksvold challenges the district court’s limited award of $1500 in trial

attorney fees. She requests $16,214.22, urging that “more than a small portion of

those fees were incurred trying to track down [Orvella’s] assets” and “disposition

of property outside of the court order,” seeking to hold him in contempt, “and trying

to stay in-step with [his] financial manipulation.” We agree. See In re Marriage of

Francis, 442 N.W.2d 59, 67 (Iowa 1989) (“[A]n award . . . rests in the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion.”).

From the outset, Orvella withheld critical financial information from

Rocksvold. On the day Rocksvold filed the dissolution of marriage petition, the

district court entered a pretrial discovery order requiring the parties to exchange a

host of financial documents, including “[a]n affidavit of financial status properly

signed and notarized.” To comply with the order, Orvella provided “a financial

statement from his bank.” Although Orvella’s attorney stated the discovery would
9

be supplemented, months went by without additional responses. Rocksvold’s

attorney was forced to file a motion to compel in which he noted Orvella had yet

“to provide an Affidavit of Financial Status” or other requested documents.

Counsel also filed an application for rule to show cause as to why Orvella should

not be held in contempt. Before a hearing on the matters, Orvella agreed to

provide the requested documents within ten days. He did not do so, and Rocksvold

filed another motion to compel. Orvella then filed an unsigned and unnotarized

“preliminary draft” affidavit of financial status. Meanwhile, Orvella failed to timely

pay child support and stopped making alimony payments. Rocksvold filed more

motions to compel and to show cause. The obfuscation continued until the eve of

trial, when Orvella filed a signed unnotarized list of assets and liabilities styled an

“affidavit of financial status.”

On this record, we conclude Rocksvold was entitled to have Orvella pay the

entirety of her trial attorney-fee bill, totaling $16,214.22. We modify the dissolution

decree to provide for the payment of this sum within 180 days of the filing of

procedendo.

VII. Appellate Attorney Fees

Rocksvold seeks an award of $3500 in appellate attorney fees. An award

rests within our discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.

App. 2007). We grant Rocksvold’s request and order Orvella to pay her appellate

attorney-fee obligation of $3500 within 180 days of the filing of procedendo.

AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-

APPEAL.