*1 rеquirements and express cleanup adopted cleanup rules for hazard-
authority to issue Beth R. re the MARRIAGE OF conditions, hazardous ous waste and F. COULTER Coulter. cleanup provide for legislature did not Coulter, Upon the Beth R.
solid waste. Petition of Appellant/Cross-Appellee, authority adopting Specific statutory for relating to solid waste administrative rules Coulter, Concerning And F. However, 455B.304. provided section Appellee/Cross-Appellant. adoption made to of rules no reference is cleanup open dumps. Even relating to No. 92-741. relating аdopted the rules the DNR cleanup. In provide do not for solid waste Appeals Court of of Iowa. contrast, adopted specific agency has 4,May 1993. cleanup of hazardous waste. rules as to 133.1-5. 567 Iowa Admin.Code
Liability cleanup of a hazard for imposed upon person
ous condition is a
having hazardous sub control over the
stance. Code 455B.392. If we Iowa § im
were to construe section 455B.307 to
pose liability cleanup of solid waste control,
upon prior a landowner who has no imposed liability
then broader would be
cleanup than for hazardous of solid waste seek
waste. This would be irrational. We interpretation
a reasonable that will best
effect the of the statute and avoid Dubuque Deere
an absurd result. John
Works,
have the force of law and are Dep’t
valid. Fernandez v. Iowa Hu Servs., man
1985). However, the must reason rules be legislative
able and consistent with enact A
ments. Id. liberal construction of the permit might
administrative rules issuance up
of an order to landowner to clean an a
open dump. this construction
would be inconsistent with the statute. with the district court conсlu-
sion that “the action of the DNR is in statutory authority granted
excess of the
to it.” We need not address constitu-
tional cross-ap- issue raised in the bank’s
peal.-
AFFIRMED.
Roger J. Hudson and Michael E. Mar- Smith, Schneider, Stiles, shall of Wimer & Hudson, P.C., Moines, appellant. Des
Phil Watson and Thomas J. Jackowski V. Moines, Peterson, P.C., of Watson & Des appellee. appeals. She claims the district (1) ordering court erred in: DONIELSON, Judge. custody Ashley; undervaluing Jon’s business, interest his Coulter Panorama Beth and Jon Coulter were married in *3 Marine, Inc.; (3) ordering the abatement of They daughter, Ashley, have a 1984. who support; awarding her insuffi- in was born 1987. alimony. requests cient She also appellate high Beth was born in 1963. She is a attorney fees. graduate, school аnd she has attended cross-appeals. He if contends this Community classes at Des Moines Area court physical determines shared custody is College University and at the of Northern proper, primary not physical custody of During Iowa. marriage, Beth worked Ashley should be awarded to him. He also in position a clerical for an insurance com- claims the awards of both pany per and earned hour. $5.50 After attorney fees at the district court level becoming pregnant Ashley, with she be- should be reduced. came a full-time Sep- homemaker. From 1990, tember 1989until March Beth worked action, equity In this our review is twenty per Cooper- hours week at the Yale R.App.P. de novo. Iowa 4. We have a ative and earned hour. Beth took duty to adju examine the entire record and primary responsibility for the household rights dicate anew on the properly issues during marriage. duties presented. Steenhoek, 448, giveWe in was born 1959. He received a weight findings to the fact of the district degree bachelor’s in music education from court, especially considering when the cred University Arizona State in 1982. In the ibility witnesses, by but are not bound 1983, brother, summer Lyn, Jon and his 14(f)(7). them. R.App.P. Iowa opened Coulter Marine near Lake Pano- rama, Panora. In June Lyn and Jon Physical Custody. I. Shared Beth first incorporated the business and became contends the district court in erred order- equal owners. ing physical custody shared Ashley. She further claims the district court erred May petition filed a by failing to award her primary physical dissolution marriage. Following trial, custody Ashley. In his cross-appeal, Jon the district court findings entered its contends he should physical be awarded fact and conclusions of law. The court custody if it is physical determined shared determined Jon’s interest in Coulter Marine custody Ashley proper. is not $15,000 1, 1984, was worth on December and had risen to the time of custody cases, In child the best trial. The court awarded Beth one-half of interests of the child is the gov first and appreciation of the business. Thе court erning consideration. The factors also awarded Beth month for $500 thir- court in awarding considers custody are ty-six months as alimony. rehabilitative enumerated in 598.41(3), Iowa Code section joint court also legal awarded Weidner, and in joint physical custody Ashley. (Iowa 1983), Each 355-56 and in In re Mar parent Ashley was to have in their Winter, care riage 166-67 fifty percent year. of the 1974). The court or- The critical issue in determin dered party pay each support to ing while Ash- the best interests of the child is which ley was in parent’s the other care. parent Be- will do better in raising the child. cause yearly support payments would Ullerich, In re Marriage payments $1404, exceed Beth’s Gender is irrele required court pay Jon to vant, Beth the differ- parent and neither should have a ence in twelve monthly installments of greater burden than the attempt other in pаyments $117. These would increase af- gain to custody in pro a dissolution ter Jon’s obligation ended. ceeding. Id. custody September in be reviewed in its court with intelligence, 1994. “maturity, recognition of parenting skills” stability, flexibility, [and] deep recognizes Although this parents should and Beth. Both of both Jon cоmmunity, parent has roots each ability to commu for their complimented
be
ability
parent
pro-
each
financial
give priority
and to
nicate with each other
Ashley,
genuine
and their
desire to
vide
acknowledge
also
Ashley’s welfare. We
Ashley, we do not find the current
raisе
Ashley
received if
gains to be
the obvious
Ashley’s
interests.
arrangement
best
much contact as
maintain as
is allowed to
modify the decree and order
therefore
parents.
In re Mar
possible
both
with
Ashley
placed
care of
be
primary
*4
Muell,
777
408 N.W.2d
riage of
parent.
eliminate the shared
with one
custody arrangement. We will
physical
primary
However,
custody
parent
with which
physical
not determine
shared
placed,
except
custody Ashley
in the most
of
will be
by
the courts
disfavored
for that
Marriage
In re
we remand to the district court
unusual circumstancеs.
and
of
(Iowa App.
223
McElroy, 475 N.W.2d
determination.
1991); Muell,
at 776. Al
result, we are unable
Because of our
will be
though
child’s best
interests
a
to create a visitation
from this record
parents,
by associating with both
served
compute
or to
the noncustodial
schedule
physical care
аttempt
provide equal
“an
to
support obligation. We re-
parent’s child
depriving
harmfully disruptive in
may be
district court for that
mand to the
necessary
stability.”
of a
sense of
the child
jurisdiction.
we do not retain
and
Note,
Muell,
(citing
776
pline, ... it tends to in Jon’s interest court undervalued district belonging parent, to either ... not [and] argues Beth Panorama Marine. Coulter permits parent in some instances it one trial expert her at figures the set forth concerning the to sow seeds of discontent controlling and the distribution should be other, spirit in which can result a property be modified the should in children and their dissatisfaction accordingly. authority. against rebellion trial, testimony of (citations presented the Burham, At N.W.2d at 272 283 Henkel, testified he C.P.A. Henkel James valuing corpora- four methods of used record, review of the we From our average of those then took the tion and find the circumstances here are unable to calculations, he used In his four methods. to the level of unusualness to warrant rise thirty percent discount because a physical custody. Ash an award of shared majority control of owned less than likely years old and most ley is now five opined the fair mar- corporation. He also upcoming year. in begin school will income was reduced ket valuе of Jon’s stability in importance Ashley’s life unreported addi- by virtue value overemphasized. juncture at this cannot be corporation. by the tional income earned decree, the district court even ac In its share to be ultimately valued Jon’s Henkel in this knowledged potentiаl difficulties $132,000. worth physical arrangement Ashley develops as testimony result, presented the of Steve academically, socially. As a Beth ly, and separate Givens, Givens used two already court had ordered the issue of C.P.A. 172 help her self-sufficient. ultimately valued order becomе
methods of valuation $459,000. property we consider division did not at Givens Jon’s share alimony together evaluating minority inter- their specifically for the discount sufficiency. individual est. Dahl, App. law, In its conclusions 1987); Griffin, expert opinions. Re- court criticized both (Iowa App.1984). N.W.2d computatiоns, the court garding Henkel’s $18,000 unreported income stated the family was awarded the fair market actually would increase val- home, Along home. with the Beth was corporation ue of the and not decrease its building may awarded a which be income- asserted Henkel. value as had been producing storage facility. a was as She had failed to con- The court noted Givens granted any also a vehicle clear of secured generated by corporate sider income tax Finally, interests. Beth was allocated a corporation in 1991. The court also $64,000. In lump payment sum cash salary adjustments found his were arbi- light property giv of the substantial award artificially increased cash trary and Beth, en to we find the award *5 result, corporation. As a flow of the thirty-six grant month for months $500 district court found the fair market value just equitable. Beth ed to to be and $190,000. Noting corporation of-the to be affirm the district court’s award of alimo $15,000 of share had the value been ny. 1984, found the increase in court Attorney cross-appeal, V. Fees. In his $175,000. value to be attorney Jon contends the fees awarded to clearly toоk the testi- district Beth at the district court level exces- were mony experts into of both account mak- requests sive and should be reduced. Beth ing findings. its The valuation found appellate attorney fees. per- the district court was well within the dissolution, In the decree of range of evidеnce and we are not missible pay district court ordered Jon to of appeal. it on inclined to disturb See In re attorney Beth’s fees. Iowa trial courts Wiedemann, 744, Marriage 402 N.W.2d of awarding have discretion in considerable (Iowa 1987); Bare, In Marriage 747 re of Giles, attorney Marriage fees. In re 551, (Iowa 1973). 203 N.W.2d 554 (Iowa 544, App.1983). 338 N.W.2d 546 To Alimony. Beth IV. also contends the complaining party overturn an award the district court awarded her insufficient ali- must show that the trial court abused its mony. cross-appeal, In argues his his attorney discretion. Id. Awards of fees alimony obligation should be reduced. amounts, for fair must be and reasonable Willcoxson, Alimony Marriage is In re right; not an absolute 425, (Iowa 1977), depends upon 427 and an award the circumstances based on the parties’ respective particular pay. of each case. abilities to In re Marriage In re Fleener, Marriage Lattig, 247 817 N.W.2d 220 (Iowa 1982). determining appropriateness App. Finding no When abuse dis cretion, alimony, “(1) affirm the the court must consider we district court’s order earning capacity regarding attorney fees. party, of each and present living ability standards of and detеrmining In ap an award of pay against balanced relative needs of the fees, pellate attorney we are to consider Estlund, other.” In Marriage re 344 party making request, the needs of the (citation App.1983) N.W.2d 281 the ability party pay, of the other party making whether request wаs primarily
Beth has worked obligated as a to defend the trial court’s deci becoming pregnant appeal. Castle, homemaker since Marriage with sion on re In Ashley years ago. some six An alimony Beth is entitled to attorney rehabilitative in award of fees is not a matter of right, but rеsts within the court’s discretion bilitative express purpose for the positions. and the financial of re-education retraining or in order that Kern, may she self-supporting. become I find it (Iowa App.1987). We award $2500 unrealistic for Beth to work full-time earn- appellate attorney feеs. during hour the time she must become re-educated or retrained. An appeal The costs of this are taxed one- award of alimony coupled rehabilitative half to Beth and one-half to Jon. requirement with the that Beth work full- stated, For the reasons we affirm the time runs counter tо the of rehabil- decree of the district court as modified. alimony. itative In We remand with directions to the district Francis, rehabilitative was charac- primary physical court to establish a custo- terized as: dian, support, and a schedule for visi- way supporting an economiсally [A] tation. dependent spouse through peri- a limited AFFIRMED AS AND RE- MODIFIED od of retraining following re-education or MANDED. divorce, thereby creating incentive and opportunity spouse for that to become concur, Judges except OXBERGER, All self-supporting. C.J., SCHLEGEL, J., who dissent. Because self-sufficiency gоal OXBERGER, alimony, rehabilitative Judge (dissenting). Chief the duration of may such an award be limited or extend- I respectfully dissent. our de novo depending ed on the realistic needs of the I physical custody review would award economically dependent spouse, tem- Ashley to Beth. *6 perеd by goal facilitating the eco- disagree I also with the district court’s independence nomic ex-spouses. of the calculations of monthly income. (Iowa 1989)(citations 63-64 First, alimony awarded to Beth was monthly deducted from Jon’s income. I it virtually impossible believe would be While the unifоrm support guidelines for Beth to receive re-education or re-train- established Supreme Court do not being expected while to work 40 hours include as a in present deduction I potential week. would not include decrees, alimony may “in be deducted an presently but earnings non-existent in cal- attempt justice to do parties”. between the culating monthly Beth’s income. In re Marriage of Lalone, 469 N.W.2d I justice do not believe respects In all other I concur with the requires deduction in this case. majority opinion. I would add monthly $500.00 in
come. SCHLEGEL, J., joins this dissent. addition, income, Beth’s as determined court, earning included an capacity hour for a 40-hour
work week. at the time of trial home,
Beth was not employed outside the
nor had she been preg- since she became Ashley.
nant with She was awarded reha-