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IN THE COURT OF APPEALS OF IOWA No. 9-087 / 08-0169 Filed July 22, 2009 IN RE THE MARRIAGE OF JUAN ROMEO RIOJAS AND YOLANDA SERVANTES RIOJAS Upon the Petition of JUAN ROMEO RIOJAS, Petitioner-Appellant, And Concerning YOLANDA SERVANTES RIOJAS, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Linn County, Fae Hoover-Grinde, Judge.

Juan Romeo Riojas appeals the child support, property division, alimony, and attorney fee provisions of the decree dissolving his marriage to Yolanda Servantes Riojas. AFFIRMED AS MODIFIED.

Theodore F. Sporer of Sporer & Flanagan, P.C., Des Moines, for appellant. Benjamin W. Blackstock of Blackstock Law Offices, Cedar Rapids, for appellee.

Considered by Mahan, P.J., and Miller and Doyle, JJ.

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MILLER, J. Juan Romeo Riojas appeals the child support, property division, alimony, and attorney fee provisions of the decree dissolving his marriage to Yolanda Servantes Riojas. We affirm as modified. I. BACKGROUND FACTS. Romeo and Jo1 were married in August 1984. Romeo was twenty-four years of age and Jo was twenty-three. Jo had a son, Hector, who was later adopted by Romeo when Hector was twelve years of age. Hector was twenty-six years of age at the time of the August 2007 trial in this case. Two sons were born to the parties' marriage, the first in March 1992 and the second in December 1993. They were fifteen years of age and thirteen years of age respectively at the time of trial. Romeo was forty-seven years of age at the time of trial. He was in good health other than being slightly overweight. Romeo is an engineer, having

received his Bachelor of Science in Chemical Engineering degree in 1984. When the parties married in 1984 they first lived in California, where Romeo was then employed. Subsequent changes of residence, all related to Romeo's

employment, have taken them to Maryland, back to California, to Virginia, back to California, to Arizona in about 1997, and finally to Iowa in 2003. Their times of residence at these locations have varied from about eight months to about eight years. Through his work experiences as an electronics engineer and more

recently as a software engineer, and through his changes in employment, Romeo
1

We refer to Juan as "Romeo" and to Yolanda as "Jo," the names by which they are commonly known and by which they were referred to at trial and in the trial court's ruling.

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has secured positions of increasing responsibilities and increased compensation. By the time of trial Romeo had secured a transfer of his employment to Texas, to be near his father who was suffering from cancer. His base pay as shown at the time of trial is now $91,591 per year. Jo was forty-six years of age at the time of trial. She was in good health, other than suffering from high blood pressure. In the early 1980s Jo attended junior college while working early morning and late evening shifts as a waitress and caring for her son who had been born in 1980. She took business and computer information system courses, but left school to marry Romeo and has not completed a two-year college degree. In Jo's opinion she has retained l ittle of the knowledge or skills she may have acquired from the courses taken almost twenty-five years ago. Prior to the parties' marriage Jo had some work experience as a secretary in an uncle's import-export business, and as a waitress. After their marriage and before the birth of their son in 1992 she had employment as a

secretary/receptionist for a mobile home park manager, as a sales clerk in various businesses, and as an employee in a daycare center. Her employment changed frequently with the parties' changes of residence. All of Jo's jobs were at or below minimum wage. When the parties' first son was born they agreed Jo would be a stay -athome mother for their children. For a period of time in the mid-1990s she

provided daycare for four to six children in the parties' home. It appears that Jo was not employed outside the home during the period from the parties' move to

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Arizona in about 1997 until September 2006 when she secured employment in the delicatessen at a Target store about two months after the parties separated. The separation occurred when Romeo moved out of the family home and into an apartment. Jo works thirty-five hours per week on average, and is unable to secure more hours at Target. She has secured an increase in compensation since beginning her employment there, and now earns $8.27 per hour, the highest rate of pay she has ever received. Her gross income from employment is thus $15,051.40 per year. In recent years Jo has been very active in, and has received some awards for, volunteer work. She has been particularly active in the Boy Scouts, where the parties' fifteen-year-old son has achieved the rank of Eagle Scout and their thirteen-year-old son is about to do so. Romeo has felt that Jo should have secured outside-the-home employment since about the time the youngest son started school, apparently in 1999. II. THE DISTRICT COURT DECREE. Certain portions of the district court's judgment are relevant to the issues presented on appeal. Pursuant to an agreement of the parties, the district court ordered joint legal custody of the parties' two minor sons and placed responsibility for their physical care with Jo, subject to rights of visitation in Romeo. The court ordered Romeo to pay child support of $1418.55 per month, reduced to $963.15 per month when the older of the two children is no longer eligible for support.

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The district court awarded Romeo a 1999 Ford E-150 van which had a value of approximately $6000, and ordered that he be responsible for the debt of $12,342 on the van. The court found the market value of the parties' residence to be $175,000, and awarded it to Jo, making her responsible for the debt on it of $162,630.97, consisting of a first mortgage of $136,597.58 and a second mortgage of $26,033.39.2 The court further ordered that when Romeo's child support obligation ceased, Jo then sell the residence and pay Romeo one-half of an amount consisting of the equity existing in the residence at the time of the parties' divorce less real estate taxes prorated to the date of possession by the purchaser and less all costs of sale, including real estate broker fees, without payment of any interest on any amount payable to him. The district court ordered that Romeo's retirement plans and accounts be divided equally between the parties by qualified domestic relations orders. One such account is identified as a Volt Technical Services Savings Plan 401(k) (with Charles Schwab) having a value of $125,742.54. Another is a Rockwell Collins Employee Stock Purchase Plan (with Fidelity) having a value of $43,559.16. A third, as shown by Romeo's testimony, is a "defined benefit plan" for which no present value is shown but which Romeo's testimony shows is vested and in which he had earned the right to eventually receive $185 per month. In a joint pretrial statement filed shortly before trial Jo proposed that Romeo be responsible for the following debts and "bills": (1) Wells Fargo Auto Loan, (2) Wells Fargo Credit Card, (3) HAFCU Visa, (4) Marriott Visa, (5)
2

It thus appears that the court implicitly found the parties had a time-of-trial equity in the residence of $12,369.03.

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Discover gas card, (6) Rockwell Visa card (7) Wildwood Apartments, (8) Alliant Energy (Romeo's apartment), (9) Mediacom (apartment), (10) ANPAC Auto Insurance, (11) US Dept. of Education (loans 1 & 2), (12) US Dept. of Education (Hector loan), and (13) NACOLAH Life Insurance. Although the record is not clear on the point, it would appear that the second through sixth of these items are credit card debts or accounts, the seventh through ninth relate to Romeo's apartment, the tenth may be an outstanding bill for auto insurance, and the thirteenth may be for term life insurance (no value for life insurance is shown in any filing, and no life insurance policy is awarded by the district court's ruling). Jo proposed that she be responsible for the first and second mortgages and the recurring utility bills for the parties' residence that she hoped to continue occupying. The district court's ruling adopted Jo's proposal as to these items, except as to one of the US Dept. of Education loans, without findings as to the amount of any one or more of them. We have earlier noted above the amount of the auto loan and the amounts of the first and second mortgages. The evidence shows that the Marriott Visa debt was $3201.69, a "Pulaski credit card" (apparently one of the credit cards, but by a different name, that Romeo was to be responsible for) debt was approximately $2200, the US Dept. of Education (loans 1 & 2) debt was $4361.58, the US Dept. of Education (Hector loan) debt was $2454.96, and an ATT credit card debt was $3671. The district court awarded each party all bank and credit union accounts in that party's individual name, but identified no accounts and placed no values or amounts on such accounts. The court awarded each party all household goods,

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furniture, appliances, personal effects, and other tangible personal property presently in that party's possession, but placed no estimate of value on those awards. The district court ordered Romeo to pay Jo one-half of a bonus of approximately $5000 he received from Rockwell Collins in December 2006, and ordered him to pay her $5000 to assist her in purchasing a vehicle. The court ordered Romeo to pay Jo $1300 per month in alimony until she dies or remarries. It ordered him to pay her $5000 in attorney fees.3 Romeo appeals, raising the issues noted above and described in greater detail below. III. SCOPE AND STANDARDS OF REVIEW. In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

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This amount is in addition to $1000 previously ordered.

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IV.

MERITS. A. Child Support.

The district court included a bonus of $5000 in Romeo's annual gross income in calculating his child support obligation. Romeo claims the court erred in doing so. For two reasons we reject this assignment of error. "All income that is not anomalous, uncertain, or speculative should be included for the purpose of determining a child support obligation." Marriage of McCurnin, 681 N.W.2d 322, 328 (Iowa 2004). In re

Such things as

overtime income, incentive pay, and bonuses are included in a party's income if reasonably to be expected. Markey v. Curney, 705 N.W.2d 13, 19 (Iowa 2005). When deciding whether bonuses should be included in gross income to determine a child support obligation, we look at a party's employment history over the past several years to determine whether the amount paid from year to year was consistent. In re Marriage of Nelson, 570 N.W.2d 103, 105 (Iowa

1997). If the amount paid was consistent, the bonuses should be included. Id. Romeo received a bonus of $5000 or more in each of the three years immediately preceding the year in which the dissolution trial was held. We

conclude the district court's decision to include the $5000 bonus in calculating Romeo's child support obligation is well supported by the evidence and the law. We also note that the district court's order, that Romeo pay child support of $1418.55 per month, reduced to $963.15 per month when the older of the two children is no longer eligible for support, is exactly what Romeo proposed in a

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joint pretrial statement filed just one day before trial. Having received precisely what he proposed, Romeo is in no position to complain. B. Property Division and Alimony.

Romeo next claims the trial court erred in its distribution of property. Although the stated issue is limited to property division, Romeo includes within it a claim that the court erred in awarding permanent alimony to Jo. address both issues. Before addressing the issues presented, we note some general principles concerning property division and alimony. Iowa is an equitable distribution state, which means the partners in a marriage that is to be dissolved are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct. App. 1995). Iowa courts do not require an equal division or percentage distribution. In re Marriage of We will

Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). The determining factor is what is fair and equitable in each particular circumstance. Id. When dividing property between the parties we take into consideration the criteria codified in Iowa Code section 598.21(5) (2007). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct. App. 1983). Adjudicating property rights in a dissolution action inextricably involves a division between the parties of both their marital assets and liabilities. Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980). In re

The allocation of

marital debts is as integral a part of property division as is the apportionment of marital assets. Id. The allocation of marital debts therefore inheres in the

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property division. Id.; In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct. App. 1996). Accordingly, the term "property division" incorporates both division of assets and assignment of responsibility for debts. 1. Property Division.

Romeo claims the district court erred in finding the value of the part ies' residence to be $175,000. He argues in part: "No credible evidence supports the trial court's record findings of value nor justifies the trial court's disregard of the objective and hence more credible evidence concerning value." Romeo introduced in evidence the Linn County Assessor's assessment of the residence for real estate tax purposes. That assessment was at a value of $201,148. Jo introduced in evidence testimony and a written appraisal indicating the fair market value of the residence to be $175,000. This evidence was based on an appraisal by Jessica Trout, a certified residential appraiser, conducted a few days before trial. Trout observed the property, examined and considered the assessor's records, and inspected the property. She de veloped a list of

comparable properties, considering similar properties in the same general neighborhood. Trout has considerable relevant experience, having conducted over 2000 real estate appraisals over the preceding ten years. The district court quite apparently accepted and relied on the Trout appraisal. Ordinarily, a trial court's evaluation 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.

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In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007). Here the trial court's valuation is within the range of permissible evidence and supported by that evidence. We affirm the court's valuation of the residence. Romeo claims the district court erred in awarding the marital home to Jo until his child support obligation ends, thus providing her with an interest-free loan of his share of the parties' equity in the home. He also complains of the court's order that closing costs be taken out of the parties' equity before he receives any portion of that equity. We will here address his claim of error in awarding the residence to Jo until his support obligation ends. We will address his other complaint in our subsequent consideration of his other claims of error regarding property division. "Frequently, payment of equity in a homestead to the non -custodial parent is postponed until the child or children graduate from high school to assure that the children have the stability of remaining there." In re Marriage of Sychra, 552 N.W.2d 907, 908-09 (Iowa Ct. App. 1996). Among the factors to be considered in property division is "[t]he desirability of awarding . . . the right to live in the family home for a reasonable period . . . to the party having physical care of the children." Iowa Code

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