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IN THE COURT OF APPEALS OF IOWA No. 1-772 / 11-0634 Filed November 23, 2011

IN RE THE MARRIAGE OF DEANNDRA TORRES AND DENNIS E.J. TORRES Upon the Petition of DEANNDRA TORRES, Petitioner-Appellant, And Concerning DENNIS E.J. TORRES, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.

A mother appeals the spousal support, tax exemption, visitation, and attorney fee provisions of the parties' dissolution decree. MODIFIED. AFFIRMED AS

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellant. Justin A. Teitle of Teitle Law Offices, Davenport, for appellee.

Considered by Eisenhauer, P.J., Doyle, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2011).

2 ZIMMER, S.J. Deanndra Torres appeals the spousal support, tax exemption, visitation, and attorney fee provisions of the decree dissolving her marriage to Dennis Torres. Upon our review, we affirm the district court's decree with one minor exception--we modify the decree to incorporate the parties' agreement regarding how they were to claim the children for tax purposes. I. Background Facts & Proceedings. Dennis and Deanndra were married in 1998. They have three children together. The children were eleven, ten, and two years old at the time of trial. Deanndra also has a sixteen-year-old son from a previous relationship. Her son lived with the parties during their marriage. The parties separated in July 2008. Deanndra filed a petition for

dissolution of marriage on December 2009. The matter proceeded to trial, and the district court entered a decree dissolving the marriage. Dennis was thirty-six years old at the time of trial. He is a tech sergeant in the Air Force. He earns $75,979 per year. Dennis is currently stationed at Elmendorf Air Force Base in Anchorage, Alaska. During the marriage, he had also been stationed at Spangdahlem, Germany, and Las Vegas, Nevada. Dennis has some college credits, but does not have a degree. Deanndra was also thirty-six years old at the time of trial. She was in the Air Force at the time of the parties' marriage. Deanndra voluntarily discharged from active duty in 2000 with a rank of E4 after six and one-half years of military service. She did not work while the parties were in Germany. She obtained a bachelor's degree in elementary education during the marriage. Deanndra

3 worked as a substitute teacher in 2006 and 2007 while the parties lived in Las Vegas. Deanndra and Dennis moved from Las Vegas to Alaska under military orders in November 2007. After the parties relocated to Alaska, Deanndra

worked as a civilian contractor on an Air Force base in support services. Her annual salary was about $45,000. The parties separated in the summer of 2008 after an incident where Dennis scratched the parties' middle child, Q.T., who has autism, while spanking him. Deanndra left with the children and moved to Iowa. Dennis remained in Alaska. The parties' youngest child was born following the separation.

Deanndra joined the Air Force Reserves in December 2010. She has the rank of E5 (Staff Sergeant) and is generally on duty one weekend per month and two weeks during the year with her unit, which is based in St. Louis, Missouri. Deanndra testified she would like to return to active duty; however, she has not followed through with the steps necessary to pursue active duty enlistment. At the time of trial, she was taking classes to obtain a second bachelor's degree in nursing. At the dissolution hearing, Deanndra testified she had been subjected to verbal abuse from Dennis during the marriage. She also claimed Dennis was physically threatening and had restrained her on occasion. In addition to the incident involving Q.T., she testified the other children had been spanked. Deanndra stated Dennis controlled all of the marital finances. Deanndra

expressed concern that Dennis had visited pornography websites on their computer. children. She asked that Dennis have only supervised visitation with the

4 Dennis testified the parties had financial problems during the marriage. He stated this caused quite a bit of stress and resulted in verbal arguments. Dennis testified the parties had agreed to exercise physical discipline with the children at times. He stated he spanked Q.T. because he had been fighting with his brother instead of going to bed and he accidentally scratched the child. Dennis voluntarily agreed to take anger management and parenting classes following this incident. He was subjected to military discipline and received

counseling. He stated he had learned new parenting strategies. Dennis testified he was no longer viewing pornography on the computer. The district court entered a dissolution decree for the parties on March 21, 2011. The court denied Deanndra's request for spousal support, finding she was capable of being self-supporting based on her education and history in the military. The court noted the parties had agreed to joint legal custody of the children with Deanndra having physical care. The court concluded there was not a history of domestic violence and denied Deanndra's request for supervised visitation. Dennis was granted visitation during summer vacation, spring break, and winter break. The court imputed an annual income to Deanndra of $20,000. The court ordered Dennis to pay child support of $1377.24 per month for the parties' three children. In addition, the court ordered Dennis to pay $316.58 per month in cash medical support. The court awarded Dennis the tax dependency exemptions for the three children as long as he was current in his support obligations. The court determined each party would be responsible for his or her own trial attorney fees.

5 Dennis filed a motion to amend and enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). In its ruling on the motion, the court recognized the parties had stipulated Dennis would maintain medical and dental insurance for the children and pay child support of $1500 per month. The court eliminated the previous child support and medical support provisions and approved this stipulation. Deanndra appeals. She claims the district court erred in failing to award spousal support, by not incorporating the parties' agreement regarding the children's tax dependency deductions, and by failing to order Dennis to pay her trial attorney fees. She additionally claims the court should have granted Dennis only supervised visitation. appellate attorney fees. II. Standard of Review. In this equity action our review is de novo. Iowa R. App. P. 6.907. In equity cases, we give weight to the fact findings of the district court, especially on credibility issues, but we are not bound by the court's findings. Iowa R. App. P. 6.904(3)(g). We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct. App. 1999). III. Spousal Support. Deanndra contends the district court should have granted her request for spousal support. She asked to receive $500 each month for five years. She states the parties agreed she would primarily stay home and care for the children while Dennis advanced his career. Deanndra points out she relocated several Both Deanndra and Dennis seek an award of

6 times during the marriage based on Dennis's service in the Air Force. She

asserts Dennis earns nearly $76,000 per year and can afford to pay spousal support. Alimony is a stipend to a spouse in lieu of the other spouse 's legal obligation for support. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005). Alimony is not an absolute right; an award depends upon the

circumstances of the particular case. Id. In making an award of alimony, the court considers the factors set forth in Iowa Code section 598.21A(1) (2009).1 In re Marriage of Olson, 705 N.W.2d 312, 315 (Iowa 2005). We give the district court considerable discretion in awarding alimony; we will disturb the court 's ruling only when there has been a failure to do equity. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). On this issue, the district court found: [Deanndra] also seeks an award of spousal support based on the discrepancy in the current incomes of the parties. As previously discussed, [Deanndra's] current lack of income is voluntary. She has more education than [Dennis] and is capable of earning a self-supporting income. Had she elected to remain in the military, her income would be comparable to, if not higher than, [Dennis's] income. The Court finds that an award of spousal support is inappropriate. We agree with the district court's conclusion Deanndra is capable of supporting herself. She has a degree in elementary education and has worked as a substitute teacher in the past. When the decree was entered, Deanndra
The factors a court considers are: (a) the length of the marriage; (b) the age and physical and emotional health of the parties; (c) the distribution of property; (d) the educational level of the parties; (e) the earning capacity of the party seeking maintenance; (f) the feasibility of the party seeking maintenance to become selfsupporting; (g) the tax consequences to each party; (h) any mutual agreement made by the parties; (i) the provisions of an antenuptial agreement; and (j) other factors the court may determine to be relevant. Iowa Code

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