                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1923
                             Filed October 28, 2015


IN RE THE MARRIAGE OF HEATHER LEIGH HERMAN
AND MARK ANTHONY HERMAN

Upon the Petition of
HEATHER LEIGH HERMAN,
      Petitioner-Appellee,

And Concerning
MARK ANTHONY HERMAN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Harrison County, James M.

Richardson, Judge.



      Mark Herman appeals from the child custody and property distribution

provisions of the decree dissolving his marriage to Heather Herman.

AFFIRMED.



      Chad D. Primmer of Chad Douglas Primmer, P.C., Council Bluffs, for

appellant.

      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Swain

& Argotsinger, P.C., Harlan, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

       Mark Herman appeals from the decree dissolving his marriage to Heather

Herman. He contends the trial court erred in denying his request for shared

physical care of the parties’ two children, seven-year-old twins. He also asserts

the district court should have followed his proposed property distribution. We do

not disturb the decree.

       The parties were married in 2002. They live in Missouri Valley, Iowa, and

Heather teaches third grade in a neighboring community. Mark’s employer is in

Omaha, Nebraska, but he is able to work from home. The children are in good

health yet both have learning challenges: G.H. experiences reading difficulties

and has been diagnosed with attention deficit hyperactivity disorder, for which

she takes medication; Q.H. has speech difficulties. The following findings of the

district court are fully supported by the record:

              Both parents love their children. The twins love both their
       parents. Historically, Heather has been the primary caretaker of
       the twins in seeing to their daily needs. Heather has participated in
       the children’s out of school activities. Mark has been a good father
       and participated in their sporting activities. . . .
              It is clear that Mark and Heather can communicate on the
       big picture items but cannot communicate concerning details. This
       is evidenced by their past arguments and name-calling. . . .
              The testimony proffered by Mark primarily dealt with the
       rights of the father. The rights of the parents are important but not
       germane to this Court’s task. The polestar for this Court is what is
       in the best interest of the twins. Specifically the issue is which
       parent can more successfully meet the needs of the children.
       History is the best guide to the future. Heather has addressed the
       learning needs of the children as well as their religious, social,
       medical, and living requirements. Alternating physical care would
       handicap either parent in addressing the speech and reading needs
       of the twins. . . . [C]onsistent bedtime, bed, homework time, and
       meals [are] required by the twins. This has been proven by the
       advancement of the twins’ learning experience pursuant to the
       temporary order.
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              This Court specifically finds that Heather is superior in
      meeting the needs of the twins. The minor children have flourished
      under her care pursuant to the temporary order.              Heather
      historically has cared for the twins’ physical needs as well as their
      learning disabilities. This is not to say that Mark is a bad parent.
      Rather, the specific needs of the twins are more adequately
      addressed by Heather. The twins require a custodial arrangement
      wherein a structured stable environment maximizes their
      relationships with both parents.

      The court accepted Heather’s valuation of the parties’ property and debts

with two exceptions. Heather listed the marital house’s value at $130,000—the

court determined the fair market value was $150,000. Heather noted Mark’s

truck had a value of $20,000, but she did not list the debt owed on the vehicle

was in excess of $23,000—the court considered Mark’s debt on the vehicle in the

property allocation. Using the court’s valuations, Heather was awarded assets

valued at $185,247 and debts totaling $162,043; Mark was awarded assets

valued at $85,971 and debts of $66,060.

      Mark appeals the child custody and property distribution provisions of the

decree.

      We review this equity action involving the dissolution of a marriage de

novo. Iowa R. App. P. 6.907. We give weight to the findings of the district court,

particularly concerning the credibility of witnesses; however, those findings are

not binding upon us. Iowa R. App. P. 6.904(3)(g).

      We agree with the district court that joint physical care is not appropriate

here, and that placing the children in Heather’s physical care will best advance

their needs for structure and consistency. See In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007) (“The objective of a physical care determination is
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to place the children in the environment most likely to bring them to health, both

physically and mentally, and to social maturity.”).

       With respect to the property division, Mark states his “proposed

distribution is equitable” and the court erred in not requiring Heather to pay him

an equalization payment of $12,430.05. Iowa is an equitable distribution state.

This “means that courts divide the property of the parties at the time of divorce,

except any property excluded from the divisible estate as separate property, in

an equitable manner in light of the particular circumstances of the parties.” In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). We will disturb the trial

court’s distribution of the marital property “only when there has been a failure to

do equity.” In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013)

(citations and internal quotation marks omitted).

       We have reviewed the court’s valuation and distribution of marital assets

awarding the parties specific property and allocating debts. The difference in the

net awards is about $3200.            Under the circumstances here, including an

inheritance to Heather, which was not set aside,1 we find no failure to do equity.

We therefore affirm the dissolution decree in its entirety.

       Heather requests an award of appellate attorney fees.                 An award of

appellate attorney fees is not a matter of right, but rests within this court’s

discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).



1
  In 2003, Heather received approximately $63,000. The parties used much of that
inheritance for family purposes. See Iowa Code § 598.21(6) (2013) (“Property inherited
by either party or gifts received by either party prior to or during the course of the
marriage is the property of that party and is not subject to a property division under this
section except upon a finding that refusal to divide the property is inequitable to the other
party or to the children of the marriage.”).
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We consider the needs of the party making the request, the ability of the other

party to pay, and whether the party making the request was obligated to defend

the district court’s decision on appeal. Id. After considering these factors, we

decline to award appellate attorney fees.

      AFFIRMED.
