author: ■KLAPHAKE, Judge.

text:
    In re the Marriage of Luke Edward SCHALLINGER, petitioner, Respondent, v. Roxanne Kathleen SCHALLINGER, Appellant.
    No. A04-2196.
    Court of Appeals of Minnesota.
    July 12, 2005.

      A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., Minneapolis, MN, for respondent.
    Jonathan J. Fogel, Fogel Law Offices, P.A., Minneapolis, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge, SHUMAKER, Judge, and CRIPPEN, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

■KLAPHAKE, Judge.

On appeal from marital-dissolution proceedings, appellant challenges the district court’s order (1) awarding joint physical custody; (2) denying maintenance; (3) calculating child support; (4) paying off respondent’s portion of the property division by invading appellant’s retirement account; (5) adopting respondent’s proposed judgment verbatim; and (6) denying attorney fees. Because the district court did not abuse its discretion or err in its application of the law, we affirm.

FACTS

Appellant Roxanne Schallinger and respondent Luke Schallinger were married on July 22, 1989, and have two children; M.L.S., born December 80, 1991, and M.A.S., born December 29, 1993. After the parties separated in May 2001, appellant remained in the family home, and respondent purchased a home approximately two blocks away.

Both parties were employed full time at 3M when they met and were married. Three months after the birth of their first child, appellant began working three days per week and continued working part time through the time of the separation.

During the marriage, respondent testified that both parties divided the duties of caring for the children. On the days appellant worked, respondent prepared the children in the morning and took them to school. In the evenings, respondent played with the children while appellant prepared the meals.

Respondent earns a net monthly income of $3,883.80 as a Senior Research Specialist at 3M and receives a quarterly profit-sharing bonus. As a Laboratory Information Technology Support Analyst, appellant earns a net monthly income of $1,350 and also receives a quarterly profit-sharing bonus.

Since the time of the separation, the parties have shared joint legal and. physical custody of their two children. The parties agreed to a schedule that allows for respondent to be with the. children every other weekend from Thursdays after school to Monday mornings, with overnights every Tuesday evening. This parenting schedule gives respondent 43% of the time with the children and appellant the remaining 57% of the time.

The older child, M.L.S., reported to the custody evaluator that he was more comfortable' spending time with appellant. M.L.S. reasoned that he had trouble sleeping at respondent’s home, his friends were near appellant’s home, ■ and he had concerns about respondent’s anger. Nevertheless, the custody eyaluator recommended the parties share joint physical and legal custody.

The district court granted joint physical and legal custody, determined child support according to the Hortis/Valento formula, and divided the marital assets. This appeal follows.

ISSUES

1. Did the district court abuse its discretion in granting joint physical custody?

2. Did the district court abuse its discretion by denying appellant maintenance?

3l Did the district court err in calculating respondent’s child support obligation?

4. Was it' an abuse of discretion to order appellant to satisfy the property division with her retirement account?

5. Did the district court err in adopting respondent’s proposed judgment and decree verbatim?

6. Is appellant entitled to attorney fees?

ANALYSIS

I. Custody

Appellant argues that the facts do not support an award of joint physical custody. A district court has broad discretion to provide .for the custody of the parties’ children. Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn.1989). The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn.App.2000). Appellate review of custody determinations is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996). A district court’s findings of fact will be sustained unless they are clearly erroneous. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.1985).

The controlling principle in all child custody determinations is the best interests of the child. Id. at 711; Minn. Stat. § 518.17 (2004). In Maxfield v. Maxfield, 452 N.W.2d 219, 221-23 (Minn.1990), the supreme court acknowledged that the legislature amended the custody statute to forbid courts from making custody placements by considering one statutory best-interests factor to the exclusion of the others. Id. at 222, n. 2 (citing 1989 Minn. Laws ch. 248, § 2). Thus, under current Minnesota law, a custody decision must be based on a balancing of the relevant statutory best interests factors.

In 1981, the legislature introduced additional factors that must be considered in a joint physical custody determination:

(a) the ability of parents to cooperate in the rearing of their children;
(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods;
(c) whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing; and
(d)whether domestic abuse, as defined in section 518B.01, has occurred between the parents.[]

Minn.Stat. § 518.17, subd. 2 (2004). There is neither a statutory presumption disfavoring joint physical custody, nor is there a preference against joint physical custody if the district court finds that it is in the best interest of the child and the four joint custody factors support such a determination. As required by Minn.Stat. § 518.17, subd. 1, the district court considered and made detailed findings on the statutory factors. See Durkin, 442 N.W.2d at 151 (basis for custody determination must be set forth with high degree of particularity).

A. Wishes of the Parents

The first statutory factor identified in Minn.Stat. § 518.17 is the wishes of the parents. The district court found and the record supports that appellant sought joint legal custody and sole physical custody of the children, and respondent sought joint legal and physical custody.

B. Reasonable Preference of Child

The district court must consider the reasonable preference of the children. In considering this factor, the court found the younger child not old enough for reasonable preference, but took the older child’s preference into consideration. The custody evaluator testified that M.L.S. reported that he was more comfortable at appellant’s home for various reasons, one being that he was closer to his friends. But the district court found that respondent’s purchase of a home near appellant rectified that concern. M.L.S. also reported difficulty sleeping at respondent’s home. There was testimony that the sleeping problems were being addressed by allowing M.L.S. to sleep with his brother and the situation had improved. Counseling also contributed to alleviation of the sleeping problems.

The custody evaluator testified that M.L.S. had concerns about respondent’s occasional outbursts of anger. The court found that the continued counseling sessions have helped M.L.S. and respondent resolve some of their previous difficulties. The record reveals that respondent has had fewer outbursts of anger since the separation and since receiving medical care for his insomnia and depression.

C. Primary Caretaker

The district court found both parties to be the children’s primary caretaker. This finding is also supported in the record. The custody evaluator concluded that appellant spent most of the time with the children, especially the younger child, and respondent spent more time playing with the children. Although appellant worked part time and thus was available to spend more time with the children, respondent testified that during the marriage he took care of the children in the evening when he came home from work so that appellant could prepare dinner and have some time to herself. He further testified that on the days appellant worked, he prepared the children in the morning by dressing and feeding them, and taking them to school.

D. Intimacy of the Relationship Between Parent and Child

The next factor to consider in determining custody is the intimacy of the relationship between the parent and the child. The court found that respondent is actively involved in the children’s lives on a daily basis and supportive of their interests in sporting activities.

E. Interaction and Interrelationship of Children and Parents

The next factor is the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests. The district court found that respondent and the children had developed their own way of doing things at his home. The older child helps the younger child with homework, and the family works together to get work done.

F. Child’s Adjustment

The district court must consider the child’s adjustment to home, school, and community. The district court found, and the record supports, that both children were doing well and have remained in the same school and community and will continue to do so, given the proximity of the parties’ homes. Both children’s teachers reported to the custody evaluator that they were doing well. The children were always well dressed and prepared for school, and the teachers were unable to discern which home they had come from each morning.

G. Length of Time Child has Lived in Environment

Next, the district court considers the length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. The district court found that the children’s environment had stabilized significantly since the separation and that respondent maintained continuity for the children by buying a new home in the neighborhood so they could remain in the same schools and community, and near their friends.

H. Permanence, as a Family Unit, of Existing or Proposed Custodial Home

The next factor to consider in a custody determination is the permanence of the existing or proposed custodial home. As noted above, respondent purchased a home in the same neighborhood as appellant in order for the children to remain close to their friends and at the same school.

I. Mental and Physical Health of Those Involved

The district court must consider the mental and physical health of those involved. The court found that respondent has worked with a therapist to conquer his long-term insomnia and depression and is currently taking medication. Appellant is physically and mentally healthy, as is M.L.S. Although M.L.S. faced some sleep issues when his parents first separated, he has sought counseling and the situation has improved. M.A.S. has epilepsy, seizures, and mild cerebral palsy, but is doing well in school and has adjusted well to the change. The record supports these findings.

J. Capacity and Disposition to Give the Child Love

Next, the court considers the capacity of each party to provide the children with love, affection, and guidance and to continue to raise the children in the.child’s culture and religion. The court found that both parents love the children and provide affection and guidance. Respondent joined a church and the children attend services with him. Appellant is supportive of the children being a part of respondent’s religion.

K. Joint Custody Factors

In addressing the additional factors necessary when joint physical or legal custody is sought, the district court contemplated the situation the parties have lived with for the last two years. The court found that the parties have functioned well since their separation with a joint physical custody agreement, that they had been able to resolve many conflicts regarding the children, and that they agreed to use a parenting consultant to address future problems. The court concluded that it is in the children’s best interests for both parents to be actively involved in their lives. The record supports the district court’s finding that the joint physical custody arrangement has been successful for the past two and a half years.

Appellant contends that respondent was verbally and physically abusive toward her. The district court did not make a finding of domestic abuse as defined in Minn.Stat. § 518B.01 (2004). The district court found that appellant exaggerates respondent’s outbursts of anger and labeled them as “isolated incidents associated with insomnia and depression.” The district court concluded that respondent has taken .the appropriate measures to deal with his anger issues and that he and M.L.S. have been able to find a resolution to some of the difficulties that previously occurred.

The custody evaluator’s testimony supports the court’s findings. She concluded that although there was verbal abuse, there was no pattern of domestic abuse. The custody evaluator did not feel that respondent’s anger problems were of significant concern regarding the children. After speaking with the various mental health professionals who evaluated respondent, the custody evaluator concluded that the serious anger problems occurred prior to the separation and were caused by his depression and the stress of the relationship.

The district court considered all the statutory factors in great detail, and the record supports its findings; thus, the court did not abuse its discretion in' awarding joint custody.

II. Maintenance/Imputed Income

Appellant contends the district court improperly imputed income to her for the purpose of determining spousal maintenance. A district court’s spousal maintenance determination will not be disturbed absent an abuse of that court’s discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982). This court will not find an abuse of discretion unless the district court’s resolution of the matter “is against logic and the facts on record.” Rutten, 347 N.W.2d at 50 (citation omitted). Unless the findings of fact are clearly erroneous, they must be upheld. Minn. R. Civ. P. 52.01; Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn.App.1992).

Maintenance awards are governed by Minn.Stat. 518.552, subd. 1 (2004), which allows a court to grant maintenance if a spouse (1) lacks sufficient property to provide for “reasonable needs ... considering the standard of living established during the marriage,” or (2) cannot provide self-support. Appellant testified that if she worked full time in her current position, she could earn approximately $40,000 per year in gross income. The court found that appellant is partially self-supporting and does not demonstrate a need for spousal maintenance because she has the ability to work full time, but chooses not to. Because she remained in the work force throughout the marriage, the district court found that she had maintained sufficient education and training to enable her to find appropriate employment to become fully self-supporting. The court found that appellant “has the ability, skills, experience, and earning capacity to provide adequate income to meet her necessary monthly expenses.... [Appellant]’s choice not to seek full-time employment does not mean that she lacks the ability to be self-supporting.”

Appellant claims these findings constitute an “imputation of income” requiring a further finding of bad faith. See Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn.App.1997). We disagree. The district court did not “impute” any specific amount of income. The district court’s findings simply reflect appellant’s general ability to be self supporting. While “imputation of income” is a method of establishing self support, it is not the only way a district court can find that a party has the ability to meet needs independently.

In determining spousal maintenance, the district court must consider “the financial resources of the party seeking maintenance ... and the party’s ability to meet needs independently” and “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.” Minn.Stat. 518.552, subd. 2(a), (g) (2004); see Bourassa v. Bourassa, 481 N.W.2d 113, 115 (Minn.App.1992) (explaining that task is basically to balance recipients need against obligors financial condition).

Here, the district court found that respondent’s net monthly income after paying $507 per month for child support is $3,793; his reasonable monthly budget is $3,847. While appellant is not able to meet her needs with her current net income of $1,350 per month, the district court found that she was in “good physical and emotional health, and has no health conditions that prevent her from seeking full-time employment.” Thus, appellant is able to expand her employment two days per week and earn approximately $3,383 per month gross. Balancing the financial needs of appellant and her ability to meet those needs against the financial condition of respondent, the district court did not abuse its discretion in denying spousal maintenance.

III. Child Support

A district coürt has broad discretion to provide for the support of the parties’ children. . Putz v. Putz, 645 N.W.2d 843, 347 (Minn.2002). , A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984) (against logic); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App.1998) (application of law). A district court’s findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous. State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn.App.1999). A determination of the amount of an obligor’s income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous. See Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn.App.2002).

The Hortis/Valento formula is presumptively appropriate for setting support when parties share joint physical custody. Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn.App.2001); Valento v. Valento, 385 N.W.2d 860, 863 (Minn.App.1986) (stating that in joint custody arrangement, -party’s support obligation is determined by guidelines amount for the period of time other parent has custody), review denied (Minn. June 30, 1986). The district court properly applied the Hor-tisfValento child-support formula in setting respondent’s monthly support payment. Thus, the district court did not abuse its discretion in setting child support.

IY. Tax Consequence of Property Equalizer

Appellant argues for the first time on appeal that the district court erred in ordering her to satisfy the property division by invading her retirement account. Because appellant did not raise this issue to the district • court in her motion for amended findings or. a new trial, she is unable to raise it on appeal. Thiele v. Stich, 425 N.W.2d 580, 682.(Minn.1988) (generally, issues not raised below will not be considered on appeal).

V. Adoption of Respondent’s Proposed Judgment and Decree

Appellant contends that she was denied an unbiased and independent review of the evidence by the district court’s use of respondent’s proposed findings of fact and conclusions of law. A district court’s verbatim adoption of a party’s proposed findings and conclusions of law is not reversible error per se. Bliss v. Bliss, 493. N.W.2d 583, 590 (Minn.App.1992), review denied (Minn. Feb. 12, 1993); Sigurdson v. Isanti County, 408 N.W.2d 654, 657 (Minn.App.1987), revieiv denied (Minn. Aug. 19, 1987). Adoption of a party’s proposed findings by a district court is generally an accepted practice. Bliss, 493 N.W.2d at 590. But if a court adopts a proposed order, it raises the question of whether the court independently evaluated the evidence. Id. A reviewing court examines the findings to determine whether they áre clearly erroneous. Kohn v. Minneapolis Fire Dep’t, 583 N.W.2d 7, 14 (Minn.App.1998), review denied (Minn. Oct. 20, 1998); Sigurdson, 408 N.W.2d at 657; see Minn. R. Civ. P. 52.01.

Based on a review of the record and the district court’s extensive findings of fact and conclusions of law, we conclude that the district court evaluated the evidence independently. Thus, the district court did not err in adopting respondent’s proposed order.

VI. Attorney Fees

Appellant also challenges the district court’s ruling on need-based attorney fees. Minn.Stat. § 518.14, subd. 1, provides that attorney fees shall be awarded if the court finds (1) the fees are necessary to a party’s good-faith claim; (2) the party from whom fees are sought has the means to pay them; and (3) the party who seeks the fees does not have the means to pay them. An award of attorney fees under Minn.Stat. § 518.14, subd. 1 (2004), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App.1998) (quotation omitted), review denied (Minn. Feb. 18,1999).

The district court found the award of attorney fees inappropriate because appellant paid her attorney and expert fees. The district court also noted that appellant chose to liquidate approximately $30,000 from the nonmarital portion of her 3M VIP account. Additionally, she requested and received an advance marital fund distribution to pay her attorney fees.

Attorney fees are granted to parties who do not have the means to carry on or contest a proceeding. Minn.Stat. § 518.14, subd. 1. It is evident from the record that appellant was able to pay her attorney. The district court did not abuse its discretion in determining that appellant had the means to pay her attorney fees, thus denying her request for fees.

DECISION

The district court did not abuse its discretion by granting joint physical custody where the record supports both the best interests and additional joint custody findings, or by determining respondent’s child-support obligation based on the legal custody determination. The district court’s denial of maintenance is supported by the record, when respondent’s ability to pay is balanced against appellant’s need for maintenance. Because the district court’s findings reveal an independent review of the record, the district court did not err in adopting respondent’s proposed order. The record supports the district court’s finding that appellant had the means to pay her attorney fees. Thus, the district court did not abuse its discretion in denying attorney fees.

Affirmed.

      . Respondent did not purchase the home in the neighborhood until shortly before trial.

      . Minn.Stat. § 518.17, subd. 2(d) was added in 1989.


source: Caselaw Access Project

author: SANDSTRÓM, Justice.

license: Public Domain

text:
    2005 ND 112
    Michele JOHNSON, f//k/a Michele Nelson, Plaintiff and Appellant v. NODAK MUTUAL INSURANCE COMPANY, Defendant and Appellee.
    No. 20040293.
    Supreme Court of North Dakota.
    June 22, 2005.
    Rehearing Denied July 25, 2005.

      David A. Garaas, Garaas Law Firm, Fargo, N.D., for plaintiff and appellant.
    William P. Harrie, Nilles, Ilvedson, Stroup, Plambeck & Seibo, Ltd., Fargo, N.D., for defendant and appellee.
   SANDSTRÓM, Justice.

[¶ 1] Michele Johnson appealed from a summary judgment dismissing her action for no-fault benefits against her motor vehicle insurer, Nodak Mutual Insurance Company, and from an order denying her motion for post-summary-judgment relief. We hold Johnsoh’s action is barred by the four-year statute of limitations in N.D.C.C. § 26.1411-19(1), and we affirm.

I

[¶ 2] Johnson was involved in separate automobile accidents in December 1996 and in February 1997. When the accidents occurred, Johnson had motor vehicle insurance, including basic no-fault benefits of $30,000, with Nodak Mutual. Nodak Mutual paid for Johnson’s medical expenses for those accidents through July 20, 1998. Nodak Mutual declined to make payments for any medical treatment received by Johnson after July 1998.- In August 1999, Nodak Mutual reiterated its decision not to .pay for medical services-received by Johnson after July 1998, but informed her that she could be re-examined by a physician chosen by Nodak Mutual and that she would need to complete a new authorization to release medical information. In September 1999, Johnson submitted an authorization to release medical information and a request for no-fault benefits to No-dak Mutual. In April 2000, Johnson received an independent medical examination from a physician chosen by Nodak Mutual, and Nodak Mutual paid for that examination in May 2000. Additionally, on November 9, 1999, Nodak Mutual paid for copies of Johnson’s medical records; on March 27, 2000, it paid for a deposition transcript of her medical history under oath; and, on June 30, 2000, it paid for legal fees for obtaining her medical history under oath. Nodak Mutual thereafter did not pay for medical services for treatment incurred by Johnson. Johnson claims she informed her health care providers to submit their bills directly to Nodak Mutual, but the record does not reflect whether any bills were submitted to Nodak Mutual.

[¶ 3] By complaint dated September 24, 2003, Johnson sued Nodak Mutual, claiming she suffered post-traumatic myo-fascial syndrome and had incurred more than $19,000 in medical expenses as a result of the motor vehicle accidents. She claimed that Nodak Mutual’s failure to pay for her medical expenses was a breach of contract and that she was entitled to indemnification for her reasonable and necessary medical and health care expenses for her injuries resulting from the motor vehicle accidents. She alleged Nodak Mutual required her to have an independent medical examination in April 2000, and her lawsuit was brought within four years after Nodak Mutual paid for that examination.

[¶ 4] Nodak Mutual answered, asserting it was not liable for Johnson’s medical expenses incurred after July 20, 1998, because any “further medical and/or chiropractic care or treatment [was] not reasonable, necessary, remedial, nor causally related to the motor vehicle accidents.” Nodak Mutual asserted Johnson’s action was barred by the statute of limitations in N.D.C.C. § 26.1-41-19(1), because she failed to commence it within four years after the last payment of no-fault benefits. Nodak Mutual moved for summary judgment, arguing it had not paid Johnson any no-fault benefits since July 20, 1998. No-dak Mutual argued the independent medical examination performed in April 2000 was not for necessary medical treatment and therefore was not a no-fault benefit under N.D.C.C. ch. 26.1-41.

[¶ 5] Johnson resisted Nodak Mutual’s motion for summary judgment, 'arguing she brought her action within four years after the last payment of benefits by No-dak Mutual. She claimed nothing in N.D.C.C. ch. 26.1-41 limited no-fault benefits to medical expenses for treatment alone. She argued the payments by No-dak Mutual in 2000 met the definition of medical expenses in N.D.C.C. § 26.1-41-01(9) and in the coverage and benefit provisions of Nodak Mutual’s insurance policy, which required her to submit to a physical examination by a physician designated by Nodak Mutual. She thus argued those payments were benefits under the policy issued by Nodak Mutual.

[¶ 6] The trial court ■ granted Nodak Mutual’s motion for summary judgment, concluding Johnson’s action was barred by the statute of limitations. The court concluded Nodak Mutual’s payments for Johnson’s independent medical examination and for the other related' expienses for Nodak Mutual’s own purposes were not necessary medical expenses and were therefore not no-fault benefits under N.D.C.C. ch. 26.1-41. The court concluded Nodak Mutual’s payments for the independent medical ex-animation and other related expenses did not toll the four-year statute of limitations for bringing .an action for recovery of further benefits under N.D.C.C. § 26.1-41-19(1).

[¶ 7] Johnson moved for a new trial and for vacation of the judgment or relief from the judgment under N.D.R.Civ.P. 59 and 60. She argued the evidence was insufficient to justify the court’s decision, because Nodak Mutual’s insurance policy required her to submit to a physical examination before she could sue Nodak Mutual, and the policy created a contract or operated as a waiver for determining when the statute of limitations began running. She argued Nodak Mutual’s payment for the cost of investigating her claim constituted a benefit under the insurance policy. . She also claimed the judgment was not in accordance with the law or there had' been a mistake of law, arguing: (1) her complaint was based upon a breach of contract and an action for breach of contract is controlled by the six-year- -statute of limitations in N.D.C.C. § 28-01-16; (2) her action accrued in April 2000 when she was required to attend an independent medical examination under the contractual provisions in her policy; (3)- Nodak Mutual waived the time when an action accrued under N.D.C.C. § 26.1^41-19(1), or was estopped to rely upon that period under the terms of its policy; (4) there was no basis to distinguish between the payments by Nodak Mutual for the investigation of her claim and .a payment for treatment; and (5) the damages she sought in her action were not “for recovery of further benefits” under N.D.C.C. § 26.1-41-19(1). The court denied Johnson’s motion for post-summary-judgment relief.

[¶ 8] The trial court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. - The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, §§ 2 and 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 9] We review this appeal under our standards for summary judgment, which is a procedure for the prompt resolution of a controversy on the merits without a trial if the evidence demonstrates there are no disputed issues of material fact or inferences to be' drawn from undisputed facts, and if the evidence shows a party is entitled to judghient as a matter Of law. Bender v. Aviko USA L.L.C., 2002 ND 13, ¶ 4, 638 N.W.2d 545. Whether a trial court properly grants summary judgment is a question of law, which we review de novo on'the entire record. Fetch v. Quam, 2001 ND 48, ¶8, 623 N.W.2d 357. A party seeking summary judgment bears the initial burden of showing there is no genuine dispute regarding the existence of a material fact. Id. at ¶ 9. On’ appeal, we view'the evidence in the light most favorable to the party opposing the motion. Id. at ¶ 8. The party resisting a motion for summary judgment may not simply rely on unsupported and' conclusory allegations or denials in the pleadings; rather, that party must set forth specific facts, whether by affidavit or by directing the court to relevant evidence in the record, demonstrating a genuine issue of material fact: Lawrence v. Roberdeau, 2003 ND 124, ¶ 7, 665 N.W.2d 719. -

III

[¶ 10] Johnson argues her action is'not barred by the statute of limitations. She claims her cause of action accrued no earlier than the independent medical examination in April 2000. She argues the language in the insurance policy that requires -her to submit to a physical examination by a physician selected by Nodak Mutual before beginning a lawsuit operates as a waiver or estoppel to extend the statute of limitations. She argues there is no contractual or statutory basis to distinguish Nodak Mutual’s payments for the independent medical examination from payments made for her medical treatment. She claims the independent medical examination and other expenses incurred by No-dak Mutual are “necessary medical ... services” under N.D.C.C. § 26.1-41-01(9). She also argues her action for breach of contract is controlled by the six-year statute of limitations in N.D.C.C. § 28-01-16, because North Dakota’s no-fault statutes provide for a cumulative remedy rather than an exclusive remedy. She further argues her action is not barred by the statute of limitations because of the continuing nature of her medical condition.

[¶ 11] Section 26.1-41-02, N.D.C.C., requires owners of motor vehicles registered in North Dakota to provide security for payment of basic no-fault benefits. Section 26.1-41-19, N.D.C.C., provides, in part:

1.
If basic or optional excess no-fault benefits have been paid for loss, an action for recovery of further benefits for the loss by either the same or another claimant may be commenced not later than four years after the last payment of benefits.
4. The time period limitations prescribed in this section govern all actions for basic and optional excess no-fault benefits under this chapter notwithstanding any limitation prescribed elsewhere in the laws of this state.

[IT 12] Section 26.1-41-19, N.D.C.C., is a specific statute of limitations for actions for no-fault benefits, which is explicitly recognized in the language that “[t]he time period limitations prescribed in this section govern all actions for basic and optional excess no-fault benefits under this chapter notwithstanding any limitation prescribed elsewhere in the laws of this state.” N.D.C.C. § 26.1-41-19(4). Under our rules of statutory construction, a specific statute controls a general statute. See Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 766 (N.D.1996) (holding, in action for reformation of ground lease, specific ten-year statute of limitations for action upon contract in instrument affecting title to real property controls over general six-year statute of limitations for action upon contract). We reject Johnson’s argument that the no-fault statutes provide for a cumulative remedy and do not preempt her common law claim for breach of contract. Section 1-01-06, N.D.C.C., provides “[i]n this state there is no common law in any case where the law is declared by the code.” This Court has construed N.D.C.C. § 1-01-06 to mean statutory enactments take precedence over and govern conflicting common law doctrines. See Vandall v. Trinity Hosps., 2004 ND 47, ¶¶ 14, 16, 676 N.W.2d 88 (holding 180-day statute of limitations in N.D.C.C. § 34-01-20(3) governs retaliatory discharge claim, rather than six-year statute of limitations for common law claim). In deciding the appropriate statute of limitations in a given case, courts consider the actual nature of the subject matter of the action and not the form of the remedial procedure. See Nesvig v. Nesvig, 2004 ND 37, ¶ 16, 676 N.W.2d 73; Diocese of Bismarck Trust, at 765; Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D.1981). The actual nature of Johnson’s action in this case is for basic no-fault benefits. We conclude the specific language in N.D.C.C. § 26.1-41-19 governs “all actions for basic ... no-fault benefits,” rather than the more general statute of limitations for actions upon a contract, and Johnson’s action is governed by the four-year statute ■ of limitations in that provision.

[¶ 13] Section 26.1-41-19(1), N.D.C.C., provides “[i]f basic ... no-fault benefits have been paid for loss, an action for recovery of further benefits for the loss by either the same or another claimant may be commenced not later than^ four years after the last payment of benefits.” In construing statutes, our duty is to ascertain the intent of the legislature. See County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 325 (N.D.1985). The legislature’s intent must be sought initially from the statutory language. Id. Unless words are defined by statute, they must be given their plain, ordinary, and commonly understood meaning. Reed v. Hillsboro Pub. Sch. Dist., 477 N.W.2d 237, 240 (N.D.1991). The interpretation of a statute is a question of law. Aamodt v. North Dakota Dep’t of Transp., 2004 ND 134, ¶ 14, 682 N.W.2d 308.

[¶ 14] The plain language and context of N.D.C.C. § 26.1-41-19(1) triggers the statute of limitations for recovery of further basic no-fault benefits from the last payment of basic no-fault benefits. Section 26.1-41-01(2), N.D.C.C., defines “basic no-fault benefits” to mean “benefits for economic loss resulting from accidental bodily injury.” Section 26.1-41-01(7), N.D.C.C., defines “economic loss” to mean “medical expenses, rehabilitation expenses, work loss, replacement services loss, survivors’ income loss, survivors’ replacement services loss, and funeral, cremation, and burial expenses,” and N.D.C.C. § 26.1-41-01(9) defines “medical expenses” to mean “reasonable charges incurred for necessary medical ... services.”

[¶ 15] We construe necessary medical services to mean necessary medical services for the benefit and treatment of the insured, and we hold the trigger for the statute of limitations in N.D.C.C. § 26.1-41-19(1) is the last payment for necessary medical services for treatment. Johnson’s independent medical .examination and the other related expenses for a deposition transcript of her medical history under oath, copies of her medical records, and legal fees for obtaining her medical history, under oath were incurred by Nodak Mutual at its own insistence to assess her claim for no-fault benefits and were not necessary medical services for her treatment. We reject Johnson’s argument that the independent medical examination was a necessary medical expense, because she was required to submit to the examination under the terms of the insurance policy. Although the insurance policy and N.D.C.C. § 26.1411-11 obligated Johnson to participate in the independent medical examination as a condition precedent to bringing an action, the examination is not a no-fault benefit for the insured within the meaning of N.D.C.C. ch. 26.1-41. We agree with Nodak Mutual that the construction urged by Johnson would lead to an absurd result, because it would allow those expenses to be credited against the limit of no-fault benefits available under an insurance policy, thereby reducing the amount of no-fault benefits that could be paid to the insured for medical expenses incurred as a result of injuries sustained in an automobile accident. That interpretation is contrary to the purpose of the no-fault statutes to provide adequate compensation to victims of automobile accidents. See Haff v. Hettich, 1999 ND 94, ¶ 33, 593 N.W.2d 383.

[¶ 16] Here, there is no dispute Nodak Mutual declined to pay for necessary medical services for treatment of Johnson after July 20, 1998, and she began her action for basic no-fault benefits more than four years after those payments. The record does not reflect what occurred between Nodak Mutual’s payment for the independent medical examination in 2000 and Johnson’s commencement of this, action in 2003, but she does not claim Nodak Mutual engaged in any form of affirmative deception so as to be equitably estopped from claiming the operation of the statute of limitations. See Narum v. Faxx Foods, Inc., 1999 ND 45, ¶ 24, 590 N.W.2d 454. We conclude the trial court did not err in granting summary judgment dismissing Johnson’s action against Nodak Mutual for no-fault benefits.

rv

[¶ 17] Johnson’s remaining issues on appeal were raised only in her motion for a new trial under N.D.R.Civ.P. 59 and for relief from the judgment under N.D.R.Civ.P. 60. We have said that issues presented for the first time to a trial court in a motion for a new trial generally are too late to be considered to make a new rule of law, or to refine an existing rule. Rummel v. Rummel, 265 N.W.2d 230, 232 (N.D.1978); Kirchoffner v. Quam, 264 N.W.2d 203, 207 (N.D.1978). See In re Guardianship/Conservatorship of Van Sickle, 2005 ND 69, ¶¶ 38-40, 694 N.W.2d 212 (holding evidence in support of motion for new trial was not newly discovered evidence that would warrant new trial). A motion for relief from a judgment under N.D.R.Civ.P. 60 also is not a substitute for an appeal. Olander Contracting Co. v. Gail Wachter Invs., 2003 ND 100, ¶ 10, 663 N.W.2d 204. A motion for relief from a judgment under N.D.R.Civ.P. 60(b) may not be used to provide a litigant with a second chance to present new explanations, legal theories, or proof to a court. See Olander, at ¶ 10.

[¶ 18] We review a trial court’s denial of a motion for a new trial and for relief from a judgment under the abuse-of-discretion standard. See Schaefer v. Souris River Telecomms. Coop., 2000 ND 187, ¶ 14, 618 N.W.2d 175; Bender v. Beverly Anne, Inc., 2002 ND 146, ¶ 18, 651 N.W.2d 642. A trial court abuses its discretion if it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned determination, or it misinterprets or misapplies the law. Schaefer, 2000 ND 187, ¶ 10, 618 N.W.2d 175.

[¶ 19] Because of our resolution of the issues pertaining to summary judgment, we conclude the trial court did not abuse its discretion in denying Johnson’s motion for post-summary-judgment relief.

V

[¶20] We affirm the summary judgment and the order denying Johnson post-judgment relief.

[¶ 21] GERALD W. VANDE WALLE, C.J.,CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, concur.

[¶ 22] The Honorable WILLIAM A. NEUMANN, a member of the Court when this case was heard, resigned effective March 14, 2005, and did not participate in this decision.


author: LARSON, Justice.

text:
    In re MARRIAGE OF Jean Marie CROSBY and Clayton Crosby, Jr. Upon the Petition of Jean Marie Crosby, Appellee, and Concerning Clayton Crosby, Jr., Appellant.
    No. 03-1919.
    Supreme Court of Iowa.
    July 1, 2005.

      Joseph G. Bertogli, Des Moines, for appellant.
    Patrick H. Payton of Patrick H. Payton & Associates, P.C., Des Moines, for appel-lee.
   LARSON, Justice.

The respondent in this case, Clayton Crosby, appeals from a property division in the decree of dissolution of the marriage between Clayton and his wife, Jean. The court of appeals modified and affirmed the decree. We vacate the decision of the court of appeals, affirm and modify the decree, and remand.

I. Facts and Prior Proceedings.

In September 2002 Jean Crosby filed a petition for dissolution, following an eleven-year marriage to Clayton. The couple did not have children together, but they each had children from other marriages. At the time of the decree in 2003, Jean was thirty-eight. She had been employed throughout most of the marriage as a registered nurse and earned approximately $44,000 per year. She contributed to social security and also had a private pension plan. Clayton was forty-six and was employed by the United States Postal Service, where he had worked since 1975. He earned approximately $62,000 per year and participated in two retirement systems: civil service retirement, which is in lieu of social security, and a Thrift Savings Plan, which is similar to a 401(k) plan.

Clayton suffered a stroke in 2001, and he continues to have residual effects from it. He testified that he might lose his job because the complications from his stroke often caused him to miss work. Although he was able to use sick leave to cover most of his absences up to the time of trial, he only had eight hours of paid sick leave left, and he speculated that he would need to take leave without pay in the future, or possibly take early retirement.

Three months after Jean filed for dissolution, the district court entered a temporary order resolving the couple’s disputes concerning their home; Clayton wanted to keep it, while Jean wanted to sell it. The court ordered the parties to sell the home, but granted Clayton temporary possession until it was sold, provided he pay the first and second mortgage payments. Clayton, however, failed to pay the first mortgage installments, which resulted in the initiation of foreclosure proceedings and $1610 in attorney fees. He also refused to produce the abstract for continuation, claiming it was lost, resulting in an $835 replacement fee.

After receiving an offer on the house, Clayton refused to sign the deed and closing documents. On April 30, 2003, the district court ordered the sale of the house without Clayton’s signature. Between the time the parties received the offer to buy and the closing, Clayton’s son burned a large hole in the carpeting, resulting in a $1500 deduction from the sale price. Clayton asked if he could keep some patio bricks, and the buyers agreed, deducting $1000 from the sale price. Clayton took some patio flagstones as well, resulting in another $1286 deduction.

II. The District Court’s Property Award.

A. The house. The district court divided the proceeds of the house sale by taking the gross sale price and deducting the mortgage balances to come to a net amount for distribution of $46,528.77. The court divided that figure in half, allocating $23,264.38 to each party. The court then deducted from Clayton’s share all of the expenses, such as the delinquent mortgage payments , accrued while he was under court order to pay them, the deduction for the bricks and flagstones, the foreclosure costs caused by his failure to pay the mortgage payments, damage to the carpet, the replacement of the abstract, and cleaning and moving expenses. As a result of these expenses, the district court concluded that Jean should receive $38,996.22 and Clayton should receive $7532.54 .from the house proceeds.

Clayton complains that this distribution is inequitable to him because the $46,528.77 received from the buyers already reflected the items set out above for which Clayton was ultimately required to reimburse Jean. He contends that to deduct them again in computing his share effectively charges him more than once for the reduction in value he caused.

The net sale proceeds were $46,528.77. The district court deducted-from Clayton’s share all of the expenses caused by him, which included:

Carpet damage 1,500.00
Clayton’s court-ordered mortgage • 8,900.15 payments
Abstract replacement ' 835.00
. Attorney fees on foreclosure 1,610.00
Total expenses attributed to Clayton $15,131.15

Adding this $15,131.15 to the net sale proceeds of $46,528.77 makes the amount the parties should have realized $61,659.92, if it had not been for Clayton’s actions. Half of that amount‘is $30,829.96, and that is what Jean should be allowed (subject to adjustment for moving and cleaning expenses as discussed later). Clayton’s $30,829.96 should be reduced by $15,131.15 for the expenses he created for a net of $15,698.81 (subject to adjustment for moving and cleaning expenses).

After the parties moved out of the home, Jean ■ spent $203.52 for. cleaning and $897.17 for moving expenses for a total of $1100.69. One-half of that amount, or $550.35, should be added to Jean’s share of the sale proceeds and the same amount deducted-from Clayton’s share. Jean’s total, share of the sale proceeds is therefore $31,380.31. ($30,829.96 plus $550.35), and Clayton’s total share is $15,148.46 ($15,-698.81 less $550.35). The decree, should be modified accordingly.

B. The Thrift Savings Plan. The district court divided Clayton’s Thrift Savings Plan by treating it as a 401(k) retirement account. The court combined the total value of the couple’s accounts and then split the sum equally between them. At the time of trial, Jean’s account was valued at $5726.84 and Clayton’s at $51,757.53. The total of the two accounts was $57,484.37, and each party was awarded half or $28,742:18. The district court awarded Jean her own retirement account plus $23,015.34 from Clayton’s account to reach that total. The court then deducted Jean’s attorney fees of $5000 from Clayton’s share as well as $14,237.13, representing: the value of a 1994 Mazda, one-half of Clayton’s toy bank collection, “unre-turned items” claimed by Jean, credit card charges, and one-half of the parties’ bank account. The total of attorney fees and other charges to be deducted from Clayton’s retirement account was $19,237.13, plus the $23,015.34, representing Jean’s share of the parties’ combined retirement accounts. The total deduction to be allocated to Jean from Clayton’s thrift plan account amounted to $42,252.47. Clayton would retain only $9505.06. The court ordered that Jean’s share would be secured by a qualifying domestic relations order (QDRO) to obligate the Thrift Savings Plan to pay this amount to Jean.

Clayton does not complain about the fifty-fifty division of the parties’ accounts, but he does complain that the district court should not have reduced his thrift share to compensate Jean for her attorney fees and marital assets not related to retirement. He claims

in doing so the Court mixed the concepts of the division of retirement assets with the division of non-retirement assets which is inappropriate and also fails to take into consideration ... the tax consequences of such a decision.

Clayton does not elaborate on what the “tax consequences” would be, but we agree that the court should not have taken the attorney fees and the value of nonretirement assets from the retirement fund. Jean is entitled to half the combined value of the parties’ retirement accounts, or $28,742.18, and as we discuss later, she is entitled to the $5000 attorney fees and the value of the other assets of $14,237.13. However, she is not entitled to have her attorney fees and other claims established as charges against Clayton’s Thrift Savings Plan. The decree and the QDRO should be modified to allow each party one-half of the parties’ combined retirement accounts.

C. Postal service retirement benefits. Clayton, as an employee of the United States Postal Service, participates in the postal service retirement system, which is a government program for postal employees in lieu of social security. Jean participates in the social security program through her employment.

Pension benefits are generally treated as marital property that can be divided by the court. In re Marriage of Howell, 434 N.W.2d 629, 631 (Iowa 1989); In re Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982). Here, the district court allowed Jean one-half of Clayton’s pension, accumulated during the marriage, which is to be payable on his retirement. Jean’s share was determined by using a fraction with the numerator being the number of years during the marriage in which Clayton accrued benefits and the denominator the total years his benefits accrued. The district court allowed Jean fifty percent of Clayton’s pension computed under this fraction.

On appeal Clayton concedes that Jean is entitled to a share of his retirement benefits; he contends only that she is entitled to a smaller share than that allocated by the district court. He argues that Jean’s share should be only twenty-five percent of his accrued benefits computed under the above formula. The court of appeals reduced Jean’s share to twenty-five percent because she is younger, healthier, has a longer expected work life, and she will have her own social security benefits on which to draw. Also, Clayton has no comparable claim to Jean’s social security benefits. We conclude that twenty-five percent of Clayton’s benefits, as computed above, is the appropriate percentage. The district court’s decree as well as its QDRO should be modified accordingly.

D. Disability payments. In addition to retirement benefits, Clayton may be entitled to disability benefits as a result of his stroke. Clayton testified that he experiences chronic fatigue and other conditions that will likely require frequent absence from work and might shorten his postal service career. Representatives of the postal service human resources department testified that Clayton might well be forced to take disability status, resulting in substantially reduced income.

Clayton complains that, under the district court’s decree, Jean would be entitled to receive fifty percent of any disability benefits he may receive. This would be inequitable, according to him, because if he begins to draw disability benefits, Jean will likely still be employed. In addition, the benefits Clayton would receive under disability would already have been reduced by about fifty percent by reason of his disability retirement. Clayton, approximately eight years older than Jean, faces an uncertain work future because of his health problems. He apparently has used over 900 hours of accumulated sick time and had only eight hours remaining at the time of trial. Jean, who claims no health problems, presumably will have a much longer work life.

Some disability benefits are to be considered the separate property of the disabled person and thus not divisible in a dissolution case. See, e.g., In re Marriage of Schriner, 695 N.W.2d 493, 498-99 (Iowa 2005) (holding workers’ compensation benefits are separate property of injured person and not subject to division). However, if disability payments “effectively supplant[] retirement benefits, the disability payments are a divisible asset to the extent they are replacing retirement benefits.” In re Marriage of Geigle, 83 Wash. App. 23, 920 P.2d 251, 255 (1996). Even if disability benefits only partially supplant retirement benefits, they are equivalent to retirement benefits and are therefore divisible. See West. v. West, 101 A.D.2d 834, 475 N.Y.S.2d 493, 494-95 (N.Y.App.Div.1984) (“[Wjhere a disability pension may, in part, represent deferred compensation, it. is. indistinguishable from a retirement pension and -is-, to that extent, subject to equitable distribution.”); see also Newell v. Newell, 121 Misc.2d 586, 468 N.Y.S.2d 814, 816-17 (N.Y.Sup.1983).

Hebe; any disability payments to which Clayton might be entitled will supplant at least part of his retirement .income. This fund, therefore, may be considered a divisible asset;. Clayton, in fact, does not dispute this. He contends, however, that it would be inequitable under the circumstances for the court to give Jean a share of it. We agree; under these circumstances, it would be inequitable to subject Clayton’s disability benefits to further reduction by requiring him to pay a portion of them to Jean. We therefore modify the district court’s decree and QDRO to eliminate any award to Jean from Clayton’s disability benefits.

E. Other property division. The district court divided other assets and debts of the parties, including a 1994 Mazda car, bank accounts, household goods, and credit card balances. We believe the court’s division was reasonable, and wé affirm it with respect to these matters.

III. Attorney Fees.

The district court awarded Jean $5000 in attorney fees. Under the circumstances of this ease, particularly considering Clayton’s lack of cooperation in such matters as selling the home and providing discovery, the allowance was reasonable. We reject Clayton’s claim to the contrary. The parties shall pay their own attorney fees on this appeal.

IV. Summary.

We modify the district court’s decree as follows: Jean shall be allowed $31,380.31, and Clayton $15,148.46, as their respective shares of the house-sale proceeds. Jean shall retain her retirement account, together with $23,015.34 from Clayton’s Thrift Savings Plan. She shall also receive $14,237.13 for the miscellaneous assets she claims, twenty-five percent of Clayton’s retirement account (but none of his disability benefits), and $5000 for her attorney fees in district court.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED AS MODIFIED; CASE REMANDED.


author: CADY, Justice.

text:
    In re the MARRIAGE OF Debra Kay OKLAND and Timothy Wayne Okland. Upon the Petition of Debra Kay Okland, Appellee, and Concerning Timothy Wayne Okland, Appellant.
    No. 04-0352.
    Supreme Court of Iowa.
    July 1, 2005.

      Thomas J. Clarke, Jr., Des Moines, for appellant.
    Patricia M. Hulting of Terrill, Martens, Hutting & Stockdale, Ames, for appellee.

      . A motion under rule 1.904(2) has been commonly referred to in the past by many names, including a motion to enlarge, motion to amend, motion for rehearing, and motion for reconsideration. Unlike the other motions covered under rule 6.5(1), the rule does not refer to the motion by a name but designates it as '.'a motion as provided in Iowa Rule of Civil Procedure 1.904(2).” Similarly, rule 1.904(2) does not refer to the motion by a name. In this opinion, we will' refer to the motion as a rule 1.904(2) motion.

   CADY, Justice.

In this appeal, we must consider, along with the propriety of the district court’s modification of various provisions of a dissolution decree, the circumstances under which a party may file a motion to amend or enlarge findings under Iowa Rule of Civil Procedure 1.904(2) after the court grants the opposing party’s rule 1.904(2) motion and amends the judgment. The district court refused to consider the substance of the appellant’s rule 1.904(2) motion because the court determined the motion was improper. Similarly, the court of appeals declined to reach the merits of the issues raised in this appeal because it determined the appellant’s notice of appeal was untimely. We conclude the appeal was filed in a timely manner. We vacate the opinion of the court of appeals and affirm the decree of the district court, as modified by this opinion.

I. Background Facts and Proceedings

Timothy and Debra. Okland were divorced on February 25, 1998. The stipulated decree entered by the district court awarded them joint legal custody and joint physical care of their three children, Ashley, Brittany, and Joshua. Among other provisions, the decree required Timothy to pay monthly child support of $549 and required Debra to maintain health insurance for the benefit of the children under her employer-provided health insurance plan. Timothy and Debra were also each required to pay one half of the children’s medical expenses not paid by insurance. The decree set forth a specific procedure for payment of unreimbursed medical expenses:

Within 30 days [of] receipt of an uninsured debt, the party receiving, documentation of said debt shall be obligated to forward said documentation to the other party. Within 30 days of receipt of said documentation, that party shall be responsible to reimburse the other party or the healthcare provider their respective share of the uninsured debt. The parties shall cooperate in the exchange of information concerning the children pursuant to this paragraph as well as exchange any and all documents or insurance cards that may be necessary to implement the terms and conditions of this paragraph.

The decree contained additional provisions relating to the support of the children. Under one provision (hereinafter referred to as the “extra expense provision”), the parties agreed to equally share the expenses of the children’s “school-related activities, extracurricular activities, clothes, automobiles and . automobile insurance.” The decree allowed Debra to claim Ashley as an exemption for income tax purposes and allowed Timothy to claim Brittany and Joshua as exemptions on his income tax returns. The court also specifically retained jurisdiction to determine the responsibility of Timothy and Debra for the postseeondary education expenses of the children.

Timothy filed a petition to modify the physical care provisions of the decree in 2003, after, Brittany and Joshua began living with him, Ashley had graduated from high school at the time and was attending college. Timothy requested primary physical care of Brittany and Joshua, sought to modify the child support obligation, and petitioned to establish the responsibility of the parties for the children’s postsecond-ary education.

Debra filed a cross-petition for modification of the decree. She sought primary physical care of Joshua, asked to terminate the extra expense provision of the decree, and requested an order be entered to require Timothy to pay her for one half of the uncovered medical expenses incurred by the children since the decree. She also requested that she be awarded all of the children as tax exemptions for income tax ■purposes and that Timothy be required to pay her one half of the premium for her health insurance plan.

Following a trial, the district court modified the decree to award primary physical care of Brittany and Joshua to Timothy and to require Debra to pay monthly child support of $660. The court did not address the other issues raised by the parties. The modified decree was filed by the court on November 26, 2003.

Debra filed a timely post-trial motion under Iowa Rule of Civil Procedure 1.904(2). The motion asked the court to amend the modified decree to terminate her obligation to equally divide the children’s “extra expenses,” to order Timothy to pay one half of the premium for the children’s health insurance plan, to allow her to claim Joshua and Brittany as tax exemptions, and to enter a judgment against Timothy for $9,134.72, her calculation of his portion of the children’s uninsured medical expenses.

Timothy did not file a resistance to Debra’s motion and did not file a separate rule 1.904(2) motion at this time. On January 5, 2004, the district court filed an order amending the modified decree as Debra requested. On January 15, 2004, Timothy filed a rule 1.904(2) motion requesting that the court vacate its prior order entered in response to Debra’s rule 1.904(2) motion. On February 5, 2004, the district court overruled Timothy’s rule 1.904(2) motion. The eourt found Timothy’s motion was untimely because it was not filed within ten days of the filing of the modified decree. Rather, Timothy’s motion was filed within ten days of the filing of the court’s order modifying the decree in response to Debra’s rule 1.904(2) motion.

Timothy filed a notice of appeal on March 4, 2004. We transferred the case to the court of appeals. The court of appeals concluded the notice of appeal was filed more than thirty days after the date the modified decree was entered and therefore dismissed the appeal as untimely. We granted further review.

II. Standard of Review

Our review in dissolution cases is de novo. In re Marriage of Benson, 545 N.W.2d 252, 253 (Iowa 1996); Iowa R.App. P. 6.4. “ ‘Although our review of the trial court’s award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity.’ ” In re Marriage of Romanelli 570 N.W.2d 761, 763 (Iowa 1997) (citing In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996)).

III. Timeliness of Appeal

Generally, a notice of appeal from an order, judgment, or decree must be filed within thirty days from the time the judgment is entered. Iowa R.App. P. 6.5(1). This time period is altered, however, when a motion for new trial, motion for judgment notwithstanding the verdict, or a rule 1.904(2) motion is filed in a timely manner. Id. In this event, notice of appeal must be filed within thirty days after entry of the ruling on the motion. Id. Thus, the rule tolls the thirty-day period until the ruling on the motion is entered.

Rule 1.904(2) permits the court to enlarge or amend its findings and conclusions and to modify or substitute the judgment or decree. Iowa R. Giv. P.> 1.904(2): A motion under this rule must be filed within ten days after the judgment or decree was entered. See id. (stating motion must be filed within time to file motion for new trial); id. r. 1.1007 (stating motion for new trial must be filed within ten days of the filing of the ■verdict). The nonmoving party is permitted, but not required, to file a resistance. Id. r. 1.904(2).

When a rule 1.904(2) motion is filed, the new time period to file a notice of appeal from a judgment or decree can be easily calculated if only one party files a single rule 1.904(2)'motion following the entry of a judgment or decree. Under this.circumstance, the rule is ■ straightforward. See Iowa R.App. P. 6.5(1). The time period starts when the ruling on the motion is entered by the district court. Id. Yet, when multiple motions or multiple movants are involved, questions arise as to when the thirty-day period to appeal begins to run. We have confronted the application of Iowa Rule of Appellate Procedure 6.5(1) in conjunction with Iowa Rule of Civil Procedure ,1.904(2) on past occasions.

In Doland v. Boone, 376 N.W.2d 870 (Iowa 1985), we were presented with a situation in which the plaintiffs filed a second application for reinstatement after the district court denied their first application for reinstatement following the entry of an order by the court dismissing the case. Doland, 376 N.W.2d at 872. The district court denied.the second motion, and. the plaintiffs filed a notice of appeal within thirty days after the entry of the order but more than thirty days following the order denying the first motion. Id.

We held the plaintiffs failed to file a notice of appeal in a timely manner because the second motion had nd legal significance. Id. at 875. The second motion did not extend or restart the time to appeal from the entry of the order denying the first motion because a party is not entitled to a rehearing on a ruling by the court on the motion unless the ruling changed or set aside the order. Id. Thus, the notice of appeal had to be filed within thirty days after the entry of the order denying the first motion. See id. at 876 (concluding notice of appeal was untimely).

■■ In Farm Credit Bank v. Faught, 492 N.W.2d 422 (Iowa 1992), the district court entered judgment for the plaintiff, and the defendants filed a rule 1.904(2) [then known as rule 179(b)] motion in a timely manner. Farm Credit Bank, 492 N.W.2d at 423. The court granted the motion and entered judgment for the defendants. Id. The plaintiff then filed, a rule 1.904(2) motion within ten days following the entry of the new judgment. Id. The district court denied the plaintiffs motion, and the plaintiff filed a notice of appeal within thirty days following the denial of its motion, but more than thirty days after the entry of the new judgment. Id. We held that the plaintiffs notice of appeal was timely.. Id. at 424. Unlike the successive and repetitive motions filed in Doland, we observed that the plaintiff was entitled to file a rule 1.904(2) motion, thereby tolling the time to appeal under rule 6.5(1), once the district court entered a new judgment in response to the defendants’ rule 1.904(2) motion. Id.

In Boughton v. McAllister, 576 N.W.2d 94 (Iowa 1998), the district court granted the defendants’ motion to dismiss the plaintiffs petition based on abusive delay of- service of process. Boughton, 576 N.W.2d at ,95. The plaintiff filed a rule 1.904(2) [then known as rule 179(b)] motion in a timely manner, alleging the existence of an agreement to delay service. Id. The plaintiff previously filed a resistance to the motion to dismiss, making the same claim, but the plaintiff filed the resistance after the motion to dismiss was submitted to the court for its ruling. Id. at 96. The district court denied the rule 1.904(2) motion. Id. It determined the prior resistance to defendants’ motion to dismiss was untimely and the facts relating to an agreement to delay service could not be considered by the court. Id. The plaintiff then filed a second rule 1.904(2) motion. Id. Although she claimed the agreement excused the delay, she also argued that the original resistance was timely and that the facts set out in the resistance should have been considered in ruling on rule 1.904(2) motion. Id. The district court again overruled the rule 1.904(2) motion, and the plaintiff filed a notice of appeal. within thirty days of the ruling, but more than thirty days after the ruling on the first rule 1.904(2) motion. Id.

We held the second rule 1.904(2) motion was improper, and the ruling entered by the court did not restart the thirty-day time period from the entry of the ruling on the first rule 1.904(2) motion. Id. Consequently, the notice of appeal was untimely. Id. We commented on the distinction between the Faught and Doland cases:

In Faught, the second [rule 1.904(2) motion] was addressed to an entirely new judgment of the district court. The underlying issue had changed from the filing of the first [rule 1.904(2)] motion, and, accordingly, the second motion was not repetitive. In Doland, the second motion for rehearing was directed to the same order and issue that was the subject of the first motion for rehearing. Consequently, the second motion was repetitive.

Id. at 95. We also adopted the rule followed in Charles L.M. v. Northeast Independent School District, 884 F.2d 869 (5th Cir.1989), to help explain the operation of our rule. Boughton, 576 N.W.2d at 95. We stated:

[T]he appeal time begins to run when the district court files an order denying a timely postjudgment motion, leaving the original judgment “ ‘in effect and unchanged.’ ” Only when the judgment is actually changed, ... would a second motion to reconsider be appropriate.

Id. (quoting Charles L.M., 884 F.2d at 870). Thus, because the original judgment in Boughton was unchanged when the court denied the first rule 1.904(2) motion, and the second motion, even though it contained new arguments, was merely a second attempt to convince the court that its ruling on the first motion was wrong, the second motion was repetitive, and the thirty-day time period to file a notice of appeal did not restart. Id. at 96. We made it clear that successive rule 1.904(2) motions that address the same issue previously denied by the court did not extend the time for appeal. Id.

Several significant principles emerge from these prior cases that guide the operation of the rule pertaining to the extension of the time to file a notice of appeal from a judgment or decree when a rule 1.904(2) motion is filed. First, an untimely or improper rule 1.904(2) motion cannot extend the time for. appeal. ■ Second, a rule 1.904(2) motion filed by a.party following a denial of the party’s prior rule 1.904(2) motion is improper and cannot extend the time for appeal if the judgment remained unchanged following the first motion. Finally, a rule, 1.904(2) motion filed after a new judgment or decree has been entered by the court in response to a prior rule 1.904(2) motion is permitted under the rule and extends the time for appeal. We think this final principle, distilled primarily from Farm, Credit Bank v. Faught, reveals that Timothy timely filed his notice of appeal in this case.

The court of appeals and the district court in this case concluded that the rule 1.904(2) motion filed by Timothy was improper because it was successive to and repetitive of the rule 1.904(2) motion filed by Debra. Both courts considered Timothy’s motion to be successive and repetitive because it constituted an attempt to convince the court that its ruling was wrong, something that Debra had already done in a procedure that permitted Timothy to file a resistance to explain why the change should not be made. Thus, any further motions were considered to be a waste of time because the prior motion provided an opportunity for both parties to have their day in court for purposes of reconsideration of the motion.

We understand that the approach taken by the court of appeals and the district court seeks to promote judicial economy, and we recognize it is supported by other authorities. See Harrell v. Dixon Bay Transp. Co., 718 F.2d 123, 128 (5th Cir. 1983) (“ ‘[A] motion for reconsideration would normally call for a reconsideration of the same issues that led to the alteration or amendment; and the party moving for reconsideration had his day in court when resisting the motion to alter or amend.’ ” (quoting 6A James Wm. Moore et al., Moore’s Federal Practice ¶ 59.13[4])). Yet, we think this view is contrary to our prior interpretations of rule 1.904(2), and -it overlooks the fundamental scope and operation of our rule permitting parties to seek reconsideration of a judgment or decree prior to filing an appeal in a nonjury case.

The confusion surrounding the application of rule 1.904(2) motions relates, in part, to its varied uses. The rule can be used by a party, with an appeal in mind, as a tool for preservation of error. See Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002) (“Our preservation of error doctrine requires a party to make a request for a ruling, and rule 179(b) [now 1.904(2)] establishes. a procedure to use under some circumstances to make the request.”). Similarly, it can be used to better enable a party to attack “specific adverse findings or rulings in the event of an appeal” by requesting additional findings and conclusions. Johnson v. Kaster, 637 N.W.2d 174, 182 (Iowa 2001) (citing Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999)). Additionally, it can be used, with no appeal in mind, to obtain a ruling on an issue 'that the court may have overlooked in making its judgment or decrée. See U.S. Cellular Corp. v. Bd. of Adjustment, 589 N.W.2d 712, 720 (Iowa 1999) (‘When the district court fails to comply with rule -179(a) [now 1.904(1)], a party may request that the court enlarge or amend its findings and conclusions.”). Yet, it can also be used by a party to merely request the court to reconsider and change the- ruling, with or without an appeal in mind. Meier, 641 N.W.2d at 538. These purposes are all derived from the broad language of the rule allowing a party to file a motion following the entry of a judgment or decree in many types of non-jury cases to request “the findings and conclusions ... be enlarged or amended and the judgment or decree modified ... or a different judgment or decree substituted.” Iowa R. Civ. P. 1.904(2). Moreover, the rule does not require a nonmov-ant to file a resistance to the motion. See id. (“Resistances may be filed.... ” (Emphasis added.)). This suggests the rule is primarily designed for the party faced with an adverse judgment, not for the party defending the judgment. It gives a party the opportunity to request the court to reconsider its ruling before incurring the time and expense of an appeal.

Under the interpretation adopted by the court of appeals, the party who initially obtained a favorable judgment at trial would never have the opportunity to request reconsideration of a subsequent adverse judgment. Clearly, the language of the rule is not limited to the original judgment. It is also important to recognize that this rule allowing for reconsideration of a judgment or a decree is not about whether parties have had their day in court. Instead, this rule is about giving parties a chance to ask the court to reconsider an adverse judgment. A party cannot do this until a judgment is entered that is adverse to the party, and a party cannot adequately challenge the potential for an adverse judgment in many cases by resisting an opposing party’s request for reconsideration of a favorable judgment. There are significant differences in resisting the modification of a favorable judgment as opposed to seeking modification of an adverse judgment. Additionally, there could be a need to utilize the rule for one of its broad purposes after the modification of a favorable judgment that was absent following the entry of a favorable judgment.

We reaffirm our prior cases holding that successive and repetitive rule 1.904(2) motions do not toll the time proscribed for filing a notice of appeal. See Boughton, 576 N.W.2d at 96. However, when the trial court grants a rule 1.904(2) motion resulting in a new judgment or decree, a proper 1.904(2) motion tolls the time to appeal. Id. The rule applies to give each party a bite at the apple to request a change or modification of an adverse judgment. This is the fairest way for the rule to work, and the number of times a party can seek reconsideration will not be endless, but will be controlled by the court in the number of times it changes the judgment or decree.

IV. Merits of Appeal

A. Uninsured Medical Expenses

The concept of child support is comprised not only of the traditional amounts one parent pays to another parent for the support of a child, established under the uniform guidelines, but also includes an order for medical support in most circumstances. Iowa Code § 598.21(4)(a) (2003). One such common circumstance is when a health benefit plan is available to a parent through employment. Id. In this circumstance, the court is required to enter a medical support order based on the employer-provided plan, and any premium cost of the plan to a parent may be considered as grounds to deviate from the uniform support guidelines in fixing the traditional support. Id. Additionally, the custodial parent is responsible for the first $250 of the uncovered medical expenses each year for each child up to a maximum of $500 for all children. Iowa Ct. R. 9.12. Any uncovered medical expenses in excess of these amounts are paid by the parents in proportion to their respective net incomes. Id.

Generally, unpaid medical support, once “reduced to a specific amount, may be collected” by the same remedies available for the collection of traditional child support. Iowa Code § 598.22. Thus, courts are empowered to reduce an unpaid medical support order to a judgment for the purposes of collection. Id. However, the obligee under the order is first required to establish legal entitlement' to a proven amount of the unpaid medical support.

In this case, Timothy asserts that Debra’s claim is largely unverified and is a product of amounts that were re-created based on faulty memory and exaggerated claims. We agree that much of Debra’s proof consisted of myriad statements from the insurance company explaining the benefits paid to the healthcare provider under the plan, not bills from the healthcare provider for amounts not paid by the insurance company. Other proof amounted to copies of checks written to various drugstores and retail stores, with no verification that medical supplies or prescription drugs were purchased.

Furthermore, Debra failed to comply with the procedure to obtain reimbursement as established under' the decree. Instead, she sought' reimbursement only after Timothy petitioned to modify the physical care provisions of the decree. While the timing of her claim gives rise to suspicion, her failure to follow the court-ordered procedure to timely inform Timothy of the expenses and to allow him to reimburse her as the expenses were incurred precludes recovery in this case. Debra offered no justification for her failure to follow the condition precedent to Timothy’s obligation to provide reimbursement. Thus, even as to those medical expenses supported by the evidence, Debra is not entitled to a judgment to aid in her collection.

B. “Extra Expenses” Provision

At the outset, we recognize that a change in the physical care provisions of the decree constitutes a substantial change in circumstances for purposes of an action to modify the child support provisions of the decree. The support provisions in the original decree in this case were based on joint physical care. Once the trial court modified the decree to award primary physical care of the children to Timothy, the support provisions would need to reflect this new arrangement.

The district court modified the child support provisions to require Debra to pay a monthly amount of child support as calculated under the uniform child support guidelines. In light of this provision, which was not challenged on appeal, the issue is whether the additional support provision of the original decree requiring .the parties to share certain specific expenses of the children is still warranted.

The purpose of the child support guidelines is to set an amount of support that will cover the normal and reasonable costs of supporting a child. See Iowa Code § 598.21(4)(a) (stating “the court may order either parent or both parents to pay an amount reasonable and ’ necessary for supporting the child”); Iowa Ct. R. 9.3 (stating the guidelines “will normally provide reasonable support”). The amount of support determined by the guidelines is designed to encompass the normal needs of a child, except for medical support and postsecondary education expenses. See Iowa Code § 598.21(4)(a) (discussing medical support in the second paragraph); id. § 598.21(5)(a) (discussing postsecondary education expenses). Thus, it would be necessary to supplement the amount of support as provided under the guidelines with additional support provisions, or otherwise deviate from the guidelines, only to take into account unique- expenses of a child not contemplated under the guidelines. See Iowa Ct. R. 9.3. While the line between normal and extraordinary expenses may not be clear,'we do not believe the extra expense provision in this case is justified. See In re Arabian, 151 N.H. 109, 855 A.2d 560, 562 (2004) (“ ‘Extracurricular activities fall into the same category of basic support as food, -shelter and recreation.’ Such expenses are included in the parties’ total support obligation. Thus, the court erred by requiring the petitioner to pay for part of the minor child’s extracurricular activity expenses in addition to child support under the guidelines.” (Citations omitted.)); see also Money v. Money, 852 P.2d 1158, 1165 (Alaska 1993) (holding that father was not required to contribute to cost of son’s hockey camp); ef. In re Marriage of Goodman, 690 N.W.2d 279, 284 (Iowa 2004) (concluding sorority expenses and cash allowance were postsecondary education expenses).

■ There is no evidence that the expenses of Brittany and Joshua for school-related activities, extracurricular activities, clothes, and automobiles are not normally incurred by other children and would not have been factored into the guidelines. These activities and items are not unique to the lives of children, and the record in this case reveals no evidence that the expenses of these children were significantly different than normally incurred by other children of their age. While some expenses, normally based on choices made by parents in the best interest of the child, may justify an extraordinary expense clause, or a deviation from the guidelines, the expenses in this case do not.

C. Tax Exemptions

The “general rule” is that the parent given primary physical care of the child is entitled to claim the child as a tax exemption. In re Marriage of Kerber, 433 N.W.2d 53, 54 (Iowa Ct.App.1988) (citing 26 U.S.C. § 152(e)(1) (1988)); see also Iowa Ct. R. 9.6(4) (“The custodial parent shall be assigned one additional dependent exemption for each mutual child of the parents, unless a parent provides information that the noncustodial parent has been allocated the dependent exemption for such child.”). However, courts have the authority to award tax exemptions, to the noncustodial parent “to achieve an equitable resolution of the economic issues presented.” In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996).

In Rolek, we recognized that a claim by a noncustodial parent for the right to declare a child as a tax exemption may be appropriate when it would “free up more money for the dependent’s care.” In re Marriage of Rolek, 555 N.W.2d at 679. We also noted the “‘inequity of allowing the exemption to remain with the parent who stands to benefit the least.’” Id. (citations omitted). Ultimately, we modified the decree in Rolek to allow the mother, who was awarded sole custody of the children in the modification proceedings, to claim the children as tax exemptions, instead of the father, who had been claiming the children as exemptions pursuant to a stipulation between the parties. Id. at 680. We noted that the father’s income had become tax-free, the mother’s income had substantially increased, and that transferring the exemptions for the children from the father to the mother would impact the mother’s tax liability to a significantly greater extent than the father’s tax liability. Id. The children’s interests were better served by allowing the mother to claim the children because it decreased her taxable income and freed more money for the children.

On our de novo review, we find that Debra has shown no circumstances to justify a modification of the tax exemptions for Brittany and Joshua. See Hallum v. Hallum, 893 So.2d 1192, 1196 (Ala.Civ.App.2004) (“An order allowing the noncustodial parent to claim the exemption is a deviation from the established guidelines and requires the trial court to state its reasons for that deviation.” (citing Flanagan v. Flanagan, 656 So.2d 1228 (Ala.Civ.App.1995))). The only real change in circumstances since the original decree is the transfer of physical care. Yet, under the general rule governing tax exemptions, this change works in favor of Timothy. See In re Marriage of Kerber, 438 N.W.2d at 54. Moreover, there was evidence in the record indicating that Timothy would benefit more from the exemptions- than would Debra. See In re Marriage of Rolek, 555 N.W.2d at 679. Therefore, equity supports allowing him to continue claiming the children. We therefore modify the district court’s supplemental decree to eliminate the provision modifying the original decree’s provision on tax exemptions. The original decree shall continue to govern the tax exemptions for the children.

D. Postsecondary Education Expenses

Timothy asked for a support order for higher education costs of the children in his petition for modification, and the district court failed to address the issue in its original modification decree, as well as the supplemental modification decree. Moreover, neither party raised the matter in his or her respective rule 1.904(2) motion. Timothy now asks on appeal that the issue be addressed.

To preserve error on the issue, Timothy was obligated to seek a ruling on the issue by filing a timely rule 1.904(2) motion. See U.S. Cellular Corp., 589 N.W.2d at 720 (“When the district court fails to comply with rule 179(a) [now 1.904(1)], a party may .request that the court enlarge or amend its findings and conclusions.”). He did not do so, and the court did not rule on the issue. Consequently, “there is nothing before us to review.” Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 167 (Iowa 2003) (“ Tt is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.’ When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.’ ” (quoting Meier, 641 N.W.2d at 537)).

E. Attorney Fees

Debra asks this court to award her $3000 in appellate attorney fees and tax all costs to Timothy. Appellate attorney fees are not a matter of right, but rather rest in this court’s discretion. Factors to be considered in determining whether to award attorney fees include: “the needs of the party seeking the award, the ability of the other party to pay, and the relative merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993) (citing In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct.App. 1981)). Although both parties prevailed on some issues in this action, the merits of the appeal primarily favored Timothy. See In re Marriage of Dawson, 467 N.W.2d 271, 276 (Iowa 1991) (“Both parties prevailed in some measure in- this modification proceeding. So we see no reason to award either party attorney fees.” (citing Iowa Code § 598.36)). Under the circumstances, each party should be responsible for his or her own attorney fees and one half of the costs of this appeal.

V. Conclusion

We conclude the appeal was timely and should not have been dismissed by the court of appeals. Timothy’s rule 1.904(2) motion, filed in response to the court’s January 5 order granting Debra’s rule 1.904(2) motion, was proper. He had thirty days from the court’s ruling on his rule 1.904(2) motion to appeal from that ruling, and therefore, his notice of appeal was timely filed.

The district court erred in modifying the decree to enter a $9134.72 judgment against Timothy for uncovered medical expenses. Debra allowed these alleged expenses to accumulate for five years and, in violation of the original decree, never demanded payment from Timothy until he filed a petition for modification. We therefore modify the district court’s supplemental decree to eliminate the provision entering judgment against Timothy.

The district court correctly concluded the decree should be modified to eliminate the provision of the decree obligating Debra to pay for one half of Brittany and Joshua’s extra expenses. Child support is intended to cover these expenses. This provision of the district court’s supplemental decree is affirmed.

The district court erred in modifying the decree to allow Debra to claim Brittany and Joshua on her taxes. Accordingly, we modify the supplemental decree to eliminate the provision modifying the original decree’s provision regarding tax exemptions. The original decree shall govern.

The issue of the postsecondary education expenses of the children is not preserved for our review. The district court did not rule on the issue, and Timothy did not file a timely rule 1.904(2) motion asking it to do so. This, however, does not preclude the parties from asking the court to establish such an order in the future.

Finally, each party should be responsible for his or her own appellate attorney fees and one half of the costs of this appeal. We have considered all other claims raised by the parties, and those claims are denied as being unpreserved for our review or without merit. The district court’s supplemental decree is affirmed as modified.

DECISION OF THE COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED AS MODIFIED.

      . A rule 1.904(2) motion can be improper not only when it is successive or repetitive of a prior rule 1.904(2) motion, but also when it is . not available to a party under rule 1.904(2). Rule 1.904(2) does not permit a party to file a motion in all cases. See Bellach v. IMT Ins. Co., 573 N.W.2d 903, 905 (Iowa 1998) ("[N]ot every 'motion to reconsider' will extend the time for appeal.” (citing Beck v. Fleener, 376 N.W.2d 594, 596 (Iowa 1985))). A rule 1.904(2) motion is not available to a party in a jury case and, absent a special rule, is not available to a party to challenge a ruling that was confined to a question of law with no underlying issue of fact. Meier v. Senecaut, 641 N.W.2d 532, 538 (Iowa 2002). Thus, the filing of an untimely' or improper rule 1.904(2) motion does not toll ’the time to appeal, and it is an example of one of the ways the rule can create a trap for an unwaiy litigant who desires to appeal.