                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1767
                              Filed August 2, 2017


IN RE THE MARRIAGE OF ABBY HOEGER NABER
AND WILLIAM MICHAEL NABER

Upon the Petition of
ABBY HOEGER NABER,
      Petitioner-Appellant,

And Concerning
WILLIAM MICHAEL NABER,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.



      Abby Hoeger Naber appeals from the physical-care and property-

distribution provisions of the decree dissolving her marriage to William Michael

Naber. AFFIRMED AS MODIFIED.



      Mark D. Fisher of Nidey Erdahl Tindal & Fisher, P.L.C., Cedar Rapids, for

appellant.

      Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, P.C.,

Dubuque, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MULLINS, Presiding Judge.

       Abby Hoeger Naber appeals from the physical-care and property-

distribution provisions of the decree dissolving her marriage to William Naber.

We affirm as modified.

       I.     Background Facts and Proceedings

       Abby, born in 1981, and William, born in 1974, met in 2000 and married in

October 2004. The parties, both residents of Dyersville, Iowa, have three minor

children: J.R.N., born in 2008; J.O.N., born in 2011; and J.W.N., born in 2012.

Abby has an associate’s degree in nursing and is employed as a nurse at a

hospital. William, who has a vocational technical certificate, was employed by

Mi-T-M for most of the duration of the parties’ marriage.         Throughout the

marriage, Abby worked a 6 p.m. to 6 a.m. shift three days a week to maximize

the time she could spend providing care for the parties’ children. Because of

this, Abby provided for the majority of the children’s day-to-day needs. William

also contributed to the maintenance of the family by, in addition to working an

8 a.m. to 5 p.m. job, performing the majority of the household cleaning and yard

work. The record reflects that, despite the parties’ differences, both parents were

devoted to their children and greatly involved in their lives.

       In July 2015, the parties separated, and Abby filed a petition for

dissolution of marriage.    In August 2015, Abby filed a petition for relief from

domestic abuse, and the court entered a temporary protective order that same

day. On August 17, 2015, a temporary order was entered upon agreement of the

parties by which Abby was awarded use of the marital home; Abby was also

awarded physical care of the children, and William was awarded visitation. As a
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result of that agreement, the August 2015 petition for relief from domestic abuse

and temporary order were dismissed. Leading up to the trial, William exercised

his visitation in the marital home—by agreement of the parties to provide

normalcy for the children—until this practice was discontinued when Abby took

issues with some of William’s conduct in the home.

       Trial on this matter was held in August 2016. Most of the parties’ disputes

revolved around each parent’s respective involvement with the children,

communication issues, and drinking habits.         Abby and her family testified at

length at how particular William was; how he was controlling toward Abby by

constantly making demands of Abby and limiting her contact with her family; that

he experienced great personal struggle as a result of the separation and

divorce—some of which was exhibited in front of the children; and that he

regularly consumed alcohol—including when supervising the children. William

testified to specific incidents when Abby engaged in excessive drinking and

extra-marital relations and that Abby had a history of dishonesty. The record

clearly establishes William initially did not want this divorce, tried to reconcile with

Abby, and experienced great personal difficulty throughout the divorce process.

However, the record also establishes each party’s acceptances that their

marriage is now irreconcilably broken and commitment to focusing on their

children. In October 2016, the district court entered its decree, awarding joint

legal custody, establishing a shared-care arrangement, declining to award child

support to either party, distributing the marital assets, and declining to award

either party attorney fees. Abby appeals, seeking physical care of the children
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and a modification of the equalization payment awarded to William.           William

resists, and both parties seek an award of appellate attorney fees.

       II.     Scope and Standard of Review

       We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must

depend on the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (citation omitted).

       III.    Analysis

               A.    Physical Care

       When child custody and physical care are at issue in marriage dissolution

cases, the primary consideration is the best interests of the children. Iowa R.

App. P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

The court must consider joint physical care if requested by any party, and if it

denies joint physical care, the court must make specific findings of fact and

conclusions of law that an award of joint physical care is not in the children’s best

interests.    Iowa Code § 598.41(5)(a) (2015); In re Marriage of Hansen, 733

N.W.2d 683, 692 (Iowa 2007). Our law provides a nonexclusive list of factors the

court shall consider in determining a custodial arrangement, see Iowa Code

§ 598.41(3), as well as nonstatutory factors, see Will, 489 N.W.2d at 398 (citing

In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974)). Factors to be

considered in determining whether joint physical care is in the children’s best
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interests include (1) continuity, stability, and approximation; (2) “the ability of

spouses to communicate and show mutual respect”; (3) “the degree of conflict

between parents”; and (4) “the degree to which the parents are in general

agreement about their approach to daily matters.” Hansen, 733 N.W.2d at 696–

99. Not all factors are given equal consideration, and the weight of each factor

depends on the specific facts and circumstances of each case. In re Marriage of

Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998).

          As we consider the factors of continuity, stability, and approximation, we

note Abby has been the primary caregiver to these children for their entire lives.

See Hansen, 733 N.W.2d at 700 (noting, “[f]or most of the marriage, [the mother]

has been the primary caregiver” and thus “[t]he concepts of continuity, stability,

and approximation . . . cut strongly against joint physical care as a quality

alternative least disruptive to the children and most likely to promote their long-

term physical and emotional health”). This was, in large part, by virtue of Abby’s

work schedule. Throughout the marriage, Abby worked from 6 p.m. to 6 a.m.

three nights a week to increase her availability to provide childcare the rest of the

week.1       William admitted Abby has had the majority of involvement in the

children’s medical and dental care, taking the children for haircuts, arranging

childcare, getting the children ready for school, shopping for the children,

transporting them to extracurricular activities, taking them to church, caring for

the children when they are sick, registering them for school, and making the

children’s meals. In other ways, the parties’ involvement with the children has

been in equal proportion, such as in participating in the children’s extracurricular

1
    William worked a shift from 8 a.m. to 4:50 or 5:00 p.m.
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activities and providing after-school care.     We note William took on other

responsibilities for the family, including taking on the lion’s share of the

household cleaning and yard work. And the parties disagreed on who spent

more time playing with the children, bathing the children, doing the laundry, and

helping put the children to bed, each favoring themselves.       Regardless, the

record supports that, prior to the parties’ separation, Abby was the primary

caregiver to the children. See id. at 697 (noting the relevant consideration that

“the caregiving of parents in the post-divorce world should be in rough proportion

to that which predated the dissolution”). Further, since the temporary order was

entered in August 2015, through the date of trial in August 2016, Abby has had

physical care of the children, with William exercising visitation every other

weekend and on Tuesday afternoon to Wednesday afternoon of every week.

However, as noted by the district court, William has provided significant care for

the children, when recognizing his work schedule kept him out of the home

during the traditional workweek timeframe. There is no indication William did not

desire to be a fully invested parent.

       Next, we consider the parties’ abilities to communicate and show mutual

respect.   See Iowa Code § 598.41(3)(c); Hansen, 733 N.W.2d at 698.           The

record reflects the parties have had periods in which they were able to

successfully communicate. For a significant period of time after their separation,

Abby allowed William to have visitation at the marital home and William

continued to do the yard work for the marital property.

       However, the parties have also had periods of difficulty communicating.

Abby testified the parties have had issues communicating and agreeing about
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things regarding the children—such as their fighting over whether one of the

children should participate in a basketball camp, where to exchange the kids, and

William’s willingness to let one son skip out on his Boy Scouts gatherings. She

also stated the children would come back to her calling her “bad” and “fat” and

accusing her of breaking up the family, which she believes William talks about to

the children. The arrangement by which William was able to exercise visitation

with the children in the marital home was terminated—according to Abby—

because William kept leaving papers around the house about affairs, divorce,

and anger management.

      Abby also recounted how William had called her names both in front of

and away from the children. William admitted to using foul language toward

Abby in front of the children but stated that both parties had participated in this

behavior and the incidents had been infrequent. William otherwise denied saying

anything negative about Abby to the children.

      Abby also recounted two incidents in which she claimed William failed to

communicate about or treat the children’s medical conditions. On one occasion,

she had dropped off the children with William while one child was sick; when she

returned, the child’s condition had substantially worsened, requiring medical

intervention. The second time, a child was hit on the head with a metal sign, and

William did not obtain medical treatment for the child. When Abby arrived, she

took the child to the emergency room where the child received three stitches.

She also testified William fails to attend to the eldest child’s school papers,

including not signing permission papers or assisting in the completion of projects.
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       However, like the district court, we recognize the vast majority of the

parties’ poor communication is a result of the stress of the separation and

pending divorce. The examples provided by Abby predominately arise from the

time period during the separation—when the conflict between the parties was at

its greatest. There was no finding of any domestic abuse between the parties.

Both parties have admitted the other is a good parent, has a good relationship

with the children, and the children love the other parent.

       As to the third factor, our supreme court has noted:

       Joint physical care requires substantial and regular interaction
       between divorced parents on a myriad of issues. Where the
       parties’ marriage is stormy and has a history of charge and
       countercharge, the likelihood that joint physical care will provide a
       workable arrangement diminishes. It is, of course, possible that
       spouses may be able to put aside their past, strong differences in
       the interest of the children. Reality suggests, however, that this
       may not be the case.

Hansen, 733 N.W.2d at 698. Generally, we note the degree of conflict between

the parties has been largely a result of the breakdown of their marriage and

William’s attempts at reconciling with Abby. We agree with the district court the

conflict between the parties is likely to lessen with the finality of a formal custody

arrangement.

       As to the fourth Hansen factor, which considers “the degree to which the

parents are in general agreement about their approach to daily matters,” id. at

699, we agree with the district court that this factor weighs in favor of awarding a

shared-care arrangement.       Nothing in the record indicates the parties have

differing views in rearing the children.
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       In reviewing a request for shared care, we must consider the “total setting

presented” in this case and determine what is in the best interests of the children.

Id.; see also Iowa Code § 598.41(5)(a).          In so doing, we acknowledge both

parents greatly love their children.

       We agree with the assessment of the district court:

       Both parties drink and were eager to testify regarding things that
       happened when the other party was intoxicated. It is not necessary
       for the court to recount the various incidents that were described,
       but suffice it to say that the evidence did not paint a particularly
       flattering picture of either party.

We acknowledge both parties also raise the mental health of the other parent.

The record indicates Abby suffered from postpartum depression and William is

diagnosed with obsessive compulsive disorder. William admits to being very

cleanly and orderly as a result of his condition. However, there is no indication

the mental-health struggles of either parent has had a meaningful impact on the

children.

       Although we find this case to be a close call, we cannot disagree with the

findings of the district court which led it to this conclusion:

              Abby is not perfect, and nor is [William]. Both have done
       things that do not reflect particularly well on them, and many of
       those things involve alcohol consumption. That hardly makes them
       unique. At the end of the day, both are good parents and can
       adequately care for the children. Despite the fault they find with
       each other, each party acknowledges that the other party is a good
       parent to the children. The Hansen factors all support a shared-
       care arrangement. Accordingly, the court concludes that such an
       arrangement is in the best interest of the boys.

       Accordingly, we affirm the custody ruling made by the district court.
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              B.     Property Allocation

       Abby challenges the district court’s award of a $25,000 equalization

payment. In matters of property distribution, we are guided by Iowa Code section

598.21. The parties in a dissolution action “are entitled to a just and equitable

share of the property accumulated through their joint efforts.” In re Marriage of

O’Rourke, 547 N.W.2d 864, 865 (Iowa Ct. App. 1996). Iowa law does not require

an equal division, but rather, “what is fair and equitable in each circumstance.” In

re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001). “Equitable

distributions require flexibility and concrete rules of distribution may frustrate the

court’s goal of obtaining equitable results.”      In re Marriage of Driscoll, 563

N.W.2d 640, 642 (Iowa Ct. App. 1997).           Thus, “it is inherent in the court’s

equitable powers, to make appropriate adjustments, according to the unique

facts of each case.” Id.

       In its decree, the district court awarded Abby property having a net value

of $110,638.96 and William of $86,197.78, a difference of $24,441.18. Finding

that difference to be roughly $25,000, the district court ordered Abby to pay

William $25,000, apparently believing that was necessary to equalize the awards.

       Abby first complains the district court erred in failing to consider a personal

$3500 loan she obtained during the separation. We find no inequity in the court’s

determination this loan is the sole and separate responsibility of Abby. However,

we agree with Abby’s complaint the district court mistakenly ordered Abby to pay

William $25,000, the result of which would leave Abby with $85,638.96, and

William with $111,197.78, effectively reversing the inequities.
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      The court also awarded William the marital home, in the event he is able

to obtain refinancing. The court found the equity in the home was $50,779.30.

Absent the equalization payment, this would increase the total net award to

William to $136,977.08, if he can refinance. If he cannot refinance the home,

then the court ordered the home be sold and the net proceeds divided equally.

In the event William is unable to secure refinancing and the property is sold and

the proceeds of the sale of the marital home are split evenly between the parties,

Abby would still receive an award of $24,441.18 in excess of that received by

William, absent the equalization payment. To do equity between the parties,

William would be entitled to an equalization payment of half that amount, or

$12,220.59. This would result in William receiving $86,197.78 (property award),

plus $12,220.59 (equalization payment), and plus $25,389.65 (assuming each

party nets half the assumed equity in the home), for a total of $123,808.02. This

would result in Abby receiving $110,638.96 (property award), minus $12,220.59

(equalization payment), and plus $25,389.65 (the other half of the equity in the

home), for a total of $123,808.02.

      In the event William is able to secure refinancing, he would receive a total

award of $136,977.08 (the $86,197.78 property award plus the full $50,779.30 of

equity in the marital home).     This award to William exceeds the award of

$110,638.96 given to Abby by $26,338.12 and entitles Abby to an equalization

payment of $13,169.06 (i.e., one half of $26,338.12) from William.

      Accordingly, we modify the district court’s property distribution to award

William an equalization payment of $12,220.59 to be paid by Abby in the event

the marital home is sold and the proceeds are equally divided between the
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parties. In the event William is able to secure refinancing for the home, we

award Abby an equalization payment of $13,169.06 from William.            Abby has

requested that any equalization payment be made by a qualified domestic

relations order (QDRO) from retirement funds. William’s brief does not address

this QDRO issue. On our review of the assets and income of each party, it is

clear that a judgment under either scenario would be an undue burden on the

parties. We determine the equalization payment ultimately required be satisfied

through a QDRO prepared by the payor and submitted to the payee for approval

within ninety days of completion of refinancing or closing on the sale of the home.

              C.     Appellate Attorney Fees

       Both parties request appellate attorney fees. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s discretion.” In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). “[I]n determining whether to award

attorney fees,” we consider “the needs of the party seeking the award, the ability

of the other party to pay, and the relative merits of the appeal.” Id. (citation

omitted).   Having considered these factors, we decline to award either party

attorney fees on appeal. Costs shall be assessed equally between the parties.

       AFFIRMED AS MODIFIED.
