                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0035
                              Filed August 19, 2015


IN RE THE MARRIAGE OF JAMES R. SHOVAR
AND CHRISTINA A. SHOVAR

Upon the Petition of
JAMES R. SHOVAR,
      Petitioner-Appellant,

And Concerning
CHRISTINA A. SHOVAR,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.



      James Shovar appeals the physical care award and property division of

the dissolution decree. AFFIRMED AS MODIFIED.




      Dennis D. Jasper, Bettendorf, for appellant.

      Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for

appellee.



      Considered by Potterfield, P.J., and Tabor and McDonald, JJ.
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POTTERFIELD, P.J.

       James Shovar appeals the physical care award and the property division

of the decree dissolving his marriage to Christina Shovar. We affirm the award of

physical care of the children to Christina and modify the property division. We

split costs equally and decline to award attorney fees.

       I.     BACKGROUND FACTS AND PROCEEDINGS

       James and Christina were married in 2003. The parties have two children,

and Christina has one child from an earlier marriage.

       At the time of trial, James was forty-two years old and in good health. He

has been diagnosed with obsessive-compulsive disorder.        James works at a

marketing company where he earns an annual income of $88,912.

       Christina is forty-two years old and is also in good health. She works

fulltime for a health insurance company. She earns additional money by working

part-time at a community credit union and donating plasma. Christina earns an

annual income of $29,914. The child from Christina’s earlier marriage is in the

custody of his father; Christina has visitation.

       In 2008, Christina initiated an action for dissolution of marriage.    The

parties reconciled.   In June, 2010, James began keeping a detailed journal to

document the parties’ daily lives, including his perceptions of Christina’s

shortcomings. James eventually filed a petition for dissolution in February 2013,

and trial was held on August 19, 2014. Relevant to this appeal, the district court

granted Christina physical care of the two children; James received liberal

visitation. The court found:
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              Both parties love their children. Both parents are capable of
      being mean, nasty, and venal in respect to each other; both parents
      are also capable of being friendly, outgoing, and considerate. Both
      parents are capable of setting aside the acrimony of this divorce
      process. Both parties are capable of working together for the
      benefit of their children. The difficulty is that the court does not
      anticipate that the parties will live up to their respective capabilities
      in this regard. The history of this divorce predates the filing of the
      petition by approximately three years. For this period of time
      [James] did not communicate with [Christina] in any meaningful
      way on any meaningful topic. . . . For three years, [James]
      demonstrated nothing but disdain for [Christina]. He demonstrated
      an utter lack of respect for her. The degree of conflict in this
      divorce was exceptional. Calling one child a “fucking liar” on the
      one hand and denying backpacks on the other, are two small
      examples which demonstrate the lengths each party have gone in
      creating conflict within this process. However, [Christina] has only
      demonstrated this level of conflict during the pendency of this
      divorce. The three years prior to the filing of the petition in this
      matter demonstrates a woman who tried to be a good wife and was
      a good mother. She was not always successful. She did not meet
      [James’s] expectations. But, as demonstrated by the diary, James
      has been allowing his anger and negative attitude to build over
      three long years. It is regrettable that he did not recognize the
      cancer that was growing, communicate his issues with [Christina],
      and seek help either with [Christina] or individually. The fact is that
      he did not. Instead, the diary was meticulously prepared and
      maintained to be used as evidence in an upcoming custody
      dispute.

      The parties had agreed that the marital home be awarded to the physical

care parent. To effect their agreement, the court granted Christina the marital

home, including the obligation to pay the note secured by the mortgage, for as

long as she receives child support for the children. While the deed to the home

is in both parties’ names, the note is solely in James’s name. The court found

neither party could afford to refinance; James would remain liable for the note

until the children reach majority age and child support would no longer be

required—thirteen years.    The court ordered the sale of the home when the

children reached majority and ruled that the parties share the net proceeds of the
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sale. The district court found James would be reimbursed for the inconvenience

of remaining obligated on the mortgage by receiving one-half of the net proceeds

of the sale of the home in thirteen years.

       James appeals.

II.    STANDARD OF REVIEW

       Our review of dissolution of marriage proceedings is de novo. In re

Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the

findings of the district court, especially to the extent credibility determinations are

involved.” Id.

III.   ANALYSIS

       A. Physical Care

       James claims the district court should have awarded him physical care of

the two children. In matters of child custody, the first and foremost consideration

“is the best interest of the child involved.” In re Marriage of Weidner, 338 N.W.2d

351, 356 (Iowa 1983); see also Iowa R. App. P. 6.904(3)(o). The Iowa Code

provides a nonexclusive list of factors to be considered in determining a custodial

arrangement that is in the best interest of a child. Iowa Code §§ 598.41(3),

600B.40 (2013); Hansen, 733 N.W.2d at 696. We also look to the non-exclusive

considerations articulated in In re Marriage of Winter, 223 N.W.2d 165, 166–67

(Iowa 1974) (including the needs of the child, the characteristics of the parents,

the relationship between the child and each parent, and the stability and

wholesomeness of the proposed environment). The goal is to assure the child

“the opportunity for the maximum continuing physical and emotional contact with

both parents after the parents have separated . . .” Iowa Code § 598.41(1)(a).
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We seek to place the child in the environment “most likely to bring [the child] to

health, both physically and mentally, and to social maturity.”         Hansen, 733

N.W.2d at 695.

       On appeal, James claims we should reverse the district court’s grant of

physical care to Christina because the court did not consider Christina’s

conflicting testimony, the court misinterpreted the custody evaluation, and the

court relied too heavily on a school counselor rather than more credible sources.

Upon our de novo review of the record, we agree with the district court’s

assessments of the parties’ respective abilities to encourage the relationship of

the children with the other parent. The court took a common sense approach in

evaluating the testimony and evidence presented. The court made credibility

determinations throughout its opinion, and provided an accurate summary for

both parties:

                The custody issue presented in this case was exceedingly
       difficult. Both parties have significant shortcomings. On his part,
       the petitioner has a personality disorder. By definition, by being
       diagnosed with such a disorder, this means that the traits of the
       disorder are so extreme that they interfere with normal patterns of
       living and relationships. The personality disorder has interfered
       with the normal patterns of living in this family. On his part,
       [James], for example, failed to recognize that [Christina] was being
       considerate and giving when she shoveled snow. Instead he was
       critical of her execution of that project. Instead of a warm “thanks,”
       he gave a cold shoulder. Instead of recognizing the early and long
       hours worked by [Christina] and the sacrifice of selling her own
       blood, he criticized her for the predictable result of such efforts.
                On her part, the [Christina] demonstrates traits of narcissism.
       During this divorce process, [Christina] has not always acted in the
       children’s best interests. But, she has expressed a willingness to
       put aside the acrimony and animosity and make shared care work.
       [James] has not expressed such willingness.               Had [James]
       expressed a willingness to attempt a fresh start, the results of this
       case may have been different.              Instead his approach is
       exclusionary, including an attempt to literally deny his children
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       access to their mother except under supervised situations. The
       denial of such contact with these children would have a profound
       and negative effect on these little girls. That [James] does not
       recognize this and, instead, advocates for such an outcome plays a
       large role in the court’s ultimate decision.

       We affirm the district court’s grant of physical care to Christina.

       B.     Marital Home

       James claims the district court failed to equitably distribute the parties’

property because it did not require Christina to refinance the marital home,

resulting in James remaining liable for the note for the next thirteen years.

       Iowa courts strive to divide marital property equitably between divorcing

spouses based on the factors set out in Iowa Code section 598.21(5). But an

equitable division is not necessarily an equal division. Hansen, 733 N.W.2d at

702. The factors relevant to this case include the length of the marriage; the

property brought into the marriage; the contribution of each party to the marriage,

giving appropriate economic value to each party’s contribution and homemaking;

the earning capacity of each party; and other economic circumstances of each

party. See Iowa Code § 598.21(5).

       Upon our de novo review of the record, we find Christina should attempt to

assume the mortgage on the home to relieve James of his liability on the note.

Christina testified she was aware the home was titled only in James’s name and

that she was willing to have the home refinanced in her name. She testified she

could afford the mortgage payments with the assistance provided by James’s

child support payments. While the parties’ agreement the children should remain

in the martial home is significant, it may be impractical if Christina is not able to

assume the liability.   The provision intending to compensate James for this
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obligation—half of the proceeds of the future sale—creates a future contingency

difficult to manage in the property division. If Christina is unable to assume the

liability on the note and mortgage, the house must be sold and the net proceeds

divided. “Where possible a trial court should divide assets rather than decree

joint ownership of assets. Joint ownership frequently results in problems at a later

date.” In re Marriage of Mentel, 359 N.W.2d 505, 506 (Iowa Ct. App. 1984). We

find the most equitable division of the marital home is to require Christina to

assume the liability on the mortgage and note within six months from the filing of

this opinion. If Christina is unable to do so, the home must be sold and the

proceeds or deficit from the sale shall be divided equally between the parties.

Therefore we modify section (a) of the dissolution decree to state:

       Recipient of 1203 N. Thornwood. Exclusive possession of this real
       estate and the obligation to pay the note secured by the mortgage
       encumbering this real estate should be awarded to Christina for the
       reasons set forth above. Within six months from the issuance of
       this opinion, Christina shall assume the liability on the note and
       mortgage in her name only. If Christina is unable to assume the
       liability on the home, the home must be sold and the net proceeds
       or deficit of the sale shall be divided equally between the parties.

       C.     Other Property

       James claims the district court inequitably assigned Christina the tax

refund and Christina’s student loans should not have been included as a marital

debt. The district court noted that each party would leave the marriage with

approximately the same negative net worth: Christina would have a negative net

worth of $27,286, and James would have a negative net worth of $27,512. The

court awarded Christina the tax refund to “more equalize the award of assets and

debts.” The record before the district court regarding the student loan debt is
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sparse, and James provides no citations or argument on appeal, other than

claiming the allocation of student debt to Christina is inequitable. The liability for

the student loan debt was solely assigned to Christina and other debts were

assigned to James in the district court’s allocation of debt. Particularly in light of

our order that Christina assume the note on the marital home, we find allocation

of the student debt and the tax refund to Christina to be equitable.

       D.     Attorney Fees

       Christina requests costs and reasonable attorney fees.          An award of

attorney fees is not a matter of right and rests within our discretion.         In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We determine whether

an award is appropriate considering the needs of the party seeking the award,

the other party's ability to pay, and whether the appeal required a party to defend

the district court's decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa

Ct .App. 2007). With these considerations in mind, we split costs equally and

decline to award attorney fees.

IV.    CONCLUSION

       We affirm the district court’s grant of physical care to Christina. We find

the district court’s disposition of the marital home was inequitable and we modify

the decree to require Christina to assume the liability on the mortgage and note

within six months from the issuance of this opinion, or if she is not able to do so,

the parties must sell the home. Further, we find the district court’s distribution of

the parties’ debts and assets was equitable. We split costs equally and decline

to award attorney fees.

       AFFIRMED AS MODIFIED.
