                   IN THE COURT OF APPEALS OF IOWA

                                 No. 18-1834
                              Filed July 3, 2019


IN RE THE MARRIAGE OF VICTORIA DUGAN
AND JAMES DUGAN

Upon the Petition of
VICTORIA DUGAN,
      Petitioner-Appellant,

And Concerning
JAMES DUGAN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,

Judge.



      Victoria Dugan appeals the child custody and support provisions of the

decree dissolving her marriage to James Dugan. AFFIRMED.



      Dana DeSimone of Miller, Pearson, Gloe, Burns, Beatty & Parrish P.L.C.,

Decorah, for appellant.

      James Dugan, Sumner, pro se appellee.



      Considered by Potterfield, P.J., and Doyle and May, JJ.
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DOYLE, Judge.

       Victoria Dugan appeals the child custody and support provisions of the

decree dissolving her marriage to James Dugan. She seeks physical care of the

children. In the alternative, she asks for modification of the visitation and child-

support provisions of the decree. She also seeks an award of spousal support and

her appellate attorney fees.

       Because the district court hears dissolution-of-marriage proceedings in

equity, our review is de novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106

(Iowa 2016); see also Iowa Code § 598.3 (2017); Iowa R. App. P. 6.907. Although

we examine the entire record and adjudicate the issues anew, we give weight to

the district court’s factual findings, especially with respect to the credibility of the

witnesses. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013);

see also Iowa R. App. P. 6.904(3)(g). This is because the district court, in making

its credibility assessment, has the distinct advantage of listening and observing

each witness’s demeanor firsthand, while we must rely on a cold transcript. See

In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989); In re Marriage of

Vrban, 359 N.W.2d 420, 423 (Iowa 1984).

       The parties married in 2001 and have six children together, ranging in age

from eight to sixteen years old. Victoria also has two younger children who are not

at issue in this action. In October 2017, after James moved to Kentucky, Victoria

filed a petition to dissolve the marriage.

       On February 26, 2018, the district court entered a temporary custody order

based on the parties’ agreement to place their four daughters in James’s physical

care while their two sons would be in Victoria’s physical care. Two weeks later,
                                           3


Victoria traveled to Kentucky, removed the children from James’s care, and

brought the children to Iowa. She alleged she did so because James’s girlfriend

informed her that he was using alcohol and methamphetamine.              However, a

sample James provided for testing on March 13 was negative for the screened

drugs. From March 2018 until the time of trial in June, Victoria only allowed James

to contact the children via telephone or video chat.

        In May 2018, James moved back to Iowa. On May 8, without James’s

knowledge, Victoria withdrew the children from the school they had been attending

in order to move to Wisconsin with Michael Stover, her boyfriend of two months.

She and Stover share a three-bedroom home with Victoria’s eight children and

Stover’s two children. At some point, Victoria also blocked James from contacting

the children by phone or Internet.

        The parties appeared pro se at the June 2018 trial. In addition to testimony

from Victoria and James, the court heard testimony from Victoria’s mother and

father and from James’s mother.

        The court entered the decree dissolving the parties’ marriage in August

2018.    It granted James physical care of the children with Victoria receiving

visitation on alternating weekends in addition to a one-week visit each month in

June, July, and August. The court ordered Victoria to pay James $210 per month

of child support and granted James tax credits for all six children.

        I. Physical Care and Visitation.

        In determining physical care and visitation, the court is to “assure the child

the opportunity for maximum continuing and emotional contact with both parents”

to the extent reasonable and in the child’s best interests.              Iowa Code
                                           4

§ 598.41(1)(a); see also In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa

2007) (stating the custodial factors in section 598.41(3) apply equally to physical

care determinations). The overriding consideration is the child’s best interest. See

In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007). The court is guided

by the factors set forth in Iowa Code section 598.41(3), as well as those identified

in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). “[T]he courts

must examine each case based on the unique facts and circumstances presented

to arrive at the best decision.” Hansen, 733 N.W.2d. at 700.

       In determining physical care, the court observed:

       James is the more stable of the two parents and is capable of
       meeting the[ children’s] needs. Victoria does not work and has not
       worked throughout the marriage. She kept the children from James
       for an extended period of time against court orders. Her own family
       questions her ability to care for four children. She has not
       demonstrated a pattern of stability. She unilaterally removed the
       children from James’s care in Kentucky after agreeing to have them
       placed in his care just several weeks before. She removed them
       from school with several weeks remaining in the semester to move
       out of state to live with her boyfriend. Her home in Iowa was
       described as being very poorly maintained.
              James has a checkered path. He has a history of drug use
       and criminal behavior. However, he is drug free and in a stable
       relationship. He lives with his mother, who is available and willing to
       provide him assistance in caring for the children. It is in the best
       interest of the six children to be in his primary care.

       Although Victoria argues that granting James physical care of the children

is contrary to their best interests, we concur with the district court’s assessment of

the evidence. Victoria’s actions of withdrawing the children from school before the

end of the semester, moving out of state and away from a support system, and

refusing to inform James of her actions or allow him contact show her disregard

for the children’s best interests in addition to the court’s orders.
                                            5


       Victoria argues the court held her to a higher standard with regard to her

actions post-separation, noting the court was critical of her decision to move out of

state with the children when James also moved out of state for a period. She

ignores the fact that she was not only aware James had moved but agreed to place

four of their children in his care before removing them to Iowa in violation of the

court’s temporary custody order. Although she claims she was motivated to do so

based on allegations of James’s alcohol and drug use, the record does not disclose

evidence to support these allegations.1 Moreover, Victoria had means of redress

through the court and failed to pursue them.2 In contrast, Victoria did not consult

with James or inform him of the move to Wisconsin, which was undertaken in

contravention of the court’s order. We also reject Victoria’s claim that the district

court violated her due process rights based on what she perceives to be a variance

in the court’s treatment of her and James.

       Victoria complains the court failed to appoint a guardian ad litem or attorney

to represent the children. Such a decision is discretionary. See In re Marriage of

Teepe, 271 N.W.2d 740, 744 (Iowa 1978). Regardless, Victoria fails to direct us

to where in the record she preserved the issue by making such a request. See

Iowa R. App. P. 6.903(2)(g)(1) (requiring the appellant’s brief to include a



1
  Victoria argues, “The sole drug test James alleges proves his lack of drug use, filed as
an exhibit in the case, was filed April 30th, 2018, long after the time the girls were with
James in Kentucky. The report lacks foundation, doesn’t even appear to have tested for
methamphetamines.” We note that the test results show the date the tested specimen
was collected was March 13, 2018. Although there is not a separate testing category for
methamphetamine, James tested negative for amphetamines.
2
  Victoria claims she “is faulted for not acting within the divorce case in bring[ing] the
children back home, but James is not held to the same standard.” We reject her attempt
to equate her act of violating the court order by removing the children from Kentucky with
James’s failure to seek enforcement of the order following her violation.
                                           6


“statement addressing how the issue was preserved for appellate review, with

references to the places in the record where the issue was raised and decided”).

Although the court may appoint a guardian ad litem to represent the children sua

sponte under Iowa Code section 598.12(1), in order to preserve a claim for

appellate review, “we require that the nature of any alleged error be timely brought

to the attention of the district court.” Mitchell v. Cedar Rapids Cmty. Sch. Dist.,

832 N.W.2d 689, 695 (Iowa 2013). Victoria’s failure to request appointment of a

guardian ad litem waives any error. See Whitley v. C.R. Pharmacy Serv., Inc., 816

N.W.2d 378, 390 (Iowa 2012) (“A litigant cannot sit on a claim of error until the trial

is over and make the claim once the result of the trial is unsatisfactory.”); Schmitt

v. Koehring Cranes, Inc., 798 N.W.2d 491, 499-500 (Iowa Ct. App. 2011) (“To

preserve error for appellate review, a party must alert the district court to the issue

at a time when the district court can take corrective action.”).

          Victoria also complains the visitation provisions of the decree are contrary

to the children’s best interests. She seeks visitation for the entirety of the summer

break from school except for the week prior to the start of the new school year.

Upon our de novo review, we find the summer visitation set forth in the decree is

in the children’s best interests and decline to modify it.

          II. Child Support.

          Victoria next contends the district court erred in calculating the amount of

her child support. The district court found that Victoria has no disabilities and is

capable of working but chooses not to, and it imputed income to her of $7.50 per

hour for forty hours per week. She contends the court erred in imputing this income

to her.
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       “When a parent voluntarily reduces his or her income or decides not to work,

it may be appropriate for the court to consider earning capacity rather than actual

earnings when applying the child support guidelines.” In re Marriage of Nelson,

570 N.W.2d 103, 106 (Iowa 1997). The court may impute income to a party based

on that party’s earning capacity upon finding “that a parent is voluntarily

unemployed or underemployed without just cause.” Iowa Ct. R. 9.11(4). However,

our rules require that in order to calculate child support based on a parent’s earning

capacity rather than actual earnings, the court must make a written determination

that “if actual earnings were used, substantial injustice would occur or adjustments

would be necessary to provide for the needs of the child(ren) or to do justice

between the parties.” Id.

       The district court failed to make the requisite finding that substantial injustice

would occur if Victoria’s earning capacity was not used to compute her child

support obligation. We are able to make such a finding on our de novo review,

however. The child support calculation uses James’s earnings from full-time

employment. Although Victoria was unemployed during much of the marriage and

at the time of trial, she no longer has custody of eight children. She is capable of

working and the evidence at trial indicates she sought work at times. It is equitable

to impute earnings to Victoria in order to support the six children she shares with

James for whom she no longer provides physical care. In order to do justice

between the parties, it is reasonable to impute income based on full-time work at

a rate of $7.50 per hour. On this basis, we affirm the district court’s child support

calculation. Additionally, under the record presented, we find the trial court’s order
                                         8


entitling James to claim all six children as dependents on his tax returns to be

equitable.

       III. Spousal Support.

       Victoria asks for an award of rehabilitative spousal support. This form of

spousal support is available for support of an economically dependent spouse

through a limited period of re-education or retraining in order to allow that spouse

to become self-supporting. See In re Marriage of Anliker, 694 N.W.2d 535, 540

(Iowa 2005). Victoria requests an award of $300 per month until the youngest child

reaches the age of sixteen years old.

       In determining whether to award spousal support, the court considers the

factors set out in Iowa Code section 598.21A(1). These factors include the length

of the marriage, each party’s age and health, the distribution of property, each

party’s education, the earning capacity of the party seeking maintenance, and the

feasibility of the party seeking maintenance becoming self-supporting at a standard

of living reasonably comparable to that enjoyed during the marriage. See Iowa

Code § 598.21A(1). Because we accord the trial court considerable latitude in

determining matters of spousal support, we will disturb such an award only when

there has been a failure to do equity. See In re Marriage of Gust, 858 N.W.2d 402,

406 (Iowa 2015).

       We decline to award Victoria spousal support on the record before us.

       IV. Appellate Attorney Fees.

       Finally, Victoria requests an award of her appellate attorney fees. Such an

award is not a matter of right but rest within our discretion. See In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We consider “the needs of the party
                                         9


seeking the award, the ability of the other party to pay, and the relative merits of

the appeal.”

       We decline to award Victoria appellate attorney fees.

       AFFIRMED.
