                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1312
                            Filed December 2, 2016


IN RE THE MARRIAGE OF MARSHA ANN RODASKY
AND DANIEL GLENN RODASKY

Upon the Petition of
MARSHA ANN RODASKY, n/k/a MARSHA ANN MEYERS,
      Petitioner-Appellee,

And Concerning
DANIEL GLENN RODASKY,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott,

Judge.



      The respondent appeals from the child custody and property division

provisions of the decree dissolving his marriage to the petitioner. AFFIRMED.



      Kendra M. Olson, Sioux City, for appellant.

      John S. Moeller of John S. Moeller, P.C., Sioux City, for appellee.



      Considered by Danilson, C.J., and Doyle and McDonald, JJ.
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DOYLE, Judge.

       In this appeal, we review the child-custody and property-distribution

provisions of a decree dissolving a twenty-one-year marriage. After reviewing

the record properly before us, we agree with the district court’s determinations

regarding child custody and division of the property. Accordingly, we affirm.

       I. Background Facts and Proceedings.

       Dan and Marsha Rodasky were married in 1994. They have two children:

M.R.,1 born in 1997, and E.R., born in 1999. The parties separated in October

2015, and two months later, Marsha filed a petition for dissolution of marriage.

       A trial was held in May 2016. On July 1, the district court entered a

decree dissolving the marriage, determining custody of E.R., and dividing the

parties’ property. Dan filed a notice of appeal on July 29. He challenges the

grant of physical care to Marsha, as well as the trial court’s valuation of the

marital home and the division of the home’s equity.

       II. Motion to Stay.

       After perfecting his appeal, Dan moved our supreme court to stay the

custody provisions of the decree.2          The supreme court denied the motion.

Thereafter, Marsha initiated a contempt action, and a hearing was held in which

the district court received evidence from both parties. At the close of that action,

Dan asked the district court to state E.R. was not required to return to Marsha’s

care. The district noted both that it lacked the power to modify the custody

1
  Custody of M.R. is not an issue as M.R. has reached the age of majority.
2
  Iowa Rule of Appellate Procedure 6.604(1) provides, “Upon application in a pending
appeal, the appellate court may, in its discretion, stay any district court order, judgment,
decree, or portion thereof affecting the custody of a child and provide for the custody of
the child during the pendency of the appeal.”
                                           3


provisions of the dissolution decree in a contempt proceeding and that the

dissolution decree had been appealed, denying it jurisdiction to modify its terms.

        On November 8, Dan filed with this court a renewed motion to stay

enforcement of the custody provision of the dissolution decree pending ruling on

his appeal, citing evidence that was received in the contempt action of events

that occurred after entry of the dissolution decree.         Iowa Rule of Appellate

Procedure 6.801 states:

               Only the original papers and exhibits filed in the district court,
       the transcript of proceedings, if any, and a certified copy of the
       docket and court calendar entries prepared by the clerk of the
       district court in the case from which the appeal is taken shall
       constitute the record on appeal.

(Emphasis added.)      Here, the case from which the appeal was taken is the

dissolution proceeding. Therefore, we may only consider the evidence that was

before the district court in the dissolution proceeding prior to Dan’s appeal. See

State ex rel. Turner v. Iowa Elec. Light & Power Co., 240 N.W.2d 912, 913 (Iowa

1976) (“We cannot in review consider matter occurring subsequent to the trial

court ruling.”); State v. Lynch, 200 N.W.2d 896, 897 (Iowa 1972) (“Our review on

this direct appeal is confined to matters properly of record in the trial court prior to

and at the time of judgment entry.”); In re Sarvey’s Estate, 219 N.W. 318, 321

(Iowa 1928) (stating it is “manifest” that matters occurring after entry of the order

appealed from “are of no concern to us in the determination of [the] appeal”).

The contempt action Marsha initiated is a separate case, and the evidence

received in that proceeding—of events which occurred after the decree was

entered—cannot be considered in our determination of the issues before us in

this appeal. See Rasmussen v. Yentes, 522 N.W.2d 844, 846 (Iowa Ct. App.
                                           4


1994) (“Facts not properly presented to the court during the course of trial and

not made a part of the record presented to this court will not be considered by

this court on review.”); In re Marriage of Keith, 513 N.W.2d 769, 711 (Iowa Ct.

App. 1994) (“We are limited to the record before us and any matters outside the

record on appeal are disregarded.”). Rather, any matters that occurred after the

decree was entered are more appropriately raised in a modification action. See

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (providing the

custodial provisions of a dissolution decree may be modified when, following

entry of a dissolution decree, the circumstances have changed so materially and

substantially that modification of custody is in the child’s best interests).

       We deny Dan’s renewed motion to stay the child custody provisions, and

we consider the merits of the appeal solely on the record properly before us.

       II. Scope of Review.

       Our review is de novo. See In re Marriage of McDermott, 827 N.W.2d

671, 676 (Iowa 2013). This means we review the entire record and adjudicate

the issues anew. See id. We give weight to the trial court’s findings of fact,

particularly with regard to witness credibility, although they are not binding. See

id.

       III. Child Custody.

       Dan first challenges the provision of the decree granting Marsha physical

care of E.R. He argues granting him physical care of E.R. is in E.R.’s best

interests.

       The overriding consideration in determining physical care of a child is the

child’s best interest. See In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa
                                            5


2007). In making this determination, the court is guided by the factors set forth in

Iowa Code section 598.41(3) (2015), as well as those identified in In re Marriage

of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). See 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).       “[T]he courts must

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

arrive at the best decision.” Id. at 700.

       The record shows that both Dan and Marsha have been active in E.R.’s

life and, until recently, both had a good relationship with E.R. Although Marsha

and E.R. have had some conflict in recent years, it appears to be the normal

conflict that occurs as children reach their teenage years and begin to assert

their independence. Although E.R. did not fight with Dan, the district court noted

this may be because Dan deferred to Marsha to be the primary disciplinarian

during the marriage.

       After the parties separated in October 2015, E.R. initially remained in

Sioux City with Marsha. In December 2015, Marsha agreed to allow E.R. to

move to Vermillion, South Dakota, where Dan lives with his girlfriend, Joanie.

Due to conflict, Marsha and E.R. did not communicate for a time in January and

February 2016. They began speaking again in March 2016, and in April 2016,

E.R. returned to Sioux City to live with Marsha while continuing to attend school

in Vermillion.

       The events that resulted in E.R.’s frequent change of residence are of

concern to this court. E.R. chose to return to live with Marsha after reading an

angry Facebook post made by Joanie about “toxic teens” that E.R. believed was
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about her. Although Joanie denies that E.R. was the subject of her ranting, it is

clear that E.R. and Joanie were often at odds while E.R. lived in Vermillion. After

returning to Sioux City, E.R. was in a car accident while allegedly drag racing

with a friend, resulting in charges for reckless driving being filed against her.

Both Dan and Joanie made Facebook posts showing damage to the car in order

to shame E.R. for her conduct. As the district court noted,

      it is clear that Joanie and Daniel’s disciplinary technique of publicly
      shaming [E.R.] has caused her much pain and anxiety. While the
      court does not disagree that shaming can sometimes be a powerful
      way of correcting negative behavior, public shaming for a teenager,
      especially a teenage girl, can be devastating for the child personally
      and can cause untold reaction from her peers.

      In the comments of her Facebook post about E.R.’s car accident, Joanie

made derogatory statements about Marsha and her parenting. It was not the first

time she had done so, nor is it the first time she had done so where E.R. could

witness it. As the district court found, there is “overwhelming evidence” that

“Daniel and especially Joanie have been very negative about Marsha” in front of

E.R. Dan’s sister, Mary, testified that after the parties separated, both Dan and

Joanie would talk in E.R.’s presence about “Marsha not being a good mother and

that she had a drinking problem.” On multiple occasions, Mary asked Dan not to

talk about Marsha in front of E.R. Not only did the conduct continue; Joanie

attacked Mary over her request. As a result, Mary’s relationship with Dan—

which was good prior to the parties’ separation—has deteriorated and is now

almost nonexistent.

      We recognize that E.R. testified she preferred to live with Dan. Although

not controlling, we do give some weight to the E.R.’s stated preference as to
                                         7

which parent she wants to live with. See Iowa Code § 598.41(3)(f). In assessing

a child’s preference, we look at, among other things, the child’s age and

educational level, the strength of the child’s preference, the child’s relationship

with family members, and the reasons the child gives for the preference. In re

Marriage of Ellerbroek, 377 N.W.2d 257, 258–59 (Iowa Ct. App. 1985). Here,

when asked her reasons for wanting to live with her father, E.R. responded that

she did not like the school she attended when she lived in Sioux City and that

she “instantly clicked” with the school and her peer group when she transferred

to a school in Vermillion. She also stated she did not have many friends in Sioux

City and had a lot of friends in Vermillion, “and so I prefer to be in Vermillion

because I get along better with my dad, and I do have a lot of friends in

Vermillion.” We believe E.R.’s preference is influenced more by her desire to live

and attend school in Vermillion than by a desire to live with Dan.

      Much of the trial testimony focused on Marsha’s use of alcohol. Joanie,

an addict in recovery who has obtained a certificate in addictions counseling,

believes that Marsha is an alcoholic. Marsha admits that she drinks alcoholic

beverages regularly, but denies alcoholism. Rather, she testified that concerns

about her drinking surfaced only after Dan began a relationship with Joanie. The

only evidence in the record regarding any alcohol abuse by Marsha comes from

Dan, Joanie, and E.R. With regard to E.R., the district court noted that at least

some of E.R.’s concerns about Marsha’s alcohol use “may be due to information

that Daniel and Joanie have provided her,” rather than by E.R.’s own

observation.    Other witnesses, like Mary and one of Marsha’s longtime

coworkers, testified they had never seen any evidence of Marsha intoxicated,
                                        8


hung over, or abusing alcohol. To whatever extent Marsha uses alcohol, the

record does not reflect a professional evaluation that she is an alcoholic, nor has

she incurred any criminal charges related to alcohol use, or present a high risk of

danger to an older child such as E.R.

      Of more concern to the district court and to this court is the evidence

relating to Dan and Joanie’s attitudes toward and comments about Marsha, and

the negative effect they had on Marsha’s relationship with E.R. The district court

found their conduct was responsible for “at least some of the current animosity”

E.R. has toward Marsha. Ultimately, Dan and Joanie’s behavior toward Marsha

tipped the scales in favor of granting Marsha physical care of E.R. See Iowa

Code § 598.41(3)(e) (listing each parent’s ability to support the other parent’s

relationship with the child as a factor to consider in determining custody). The

court reasoned:

      While the court certainly understands [E.R.]’s desire to change
      schools . . . and believes it was the right decision for her to do so,
      the court has very significant concerns about [E.R.]’s long term
      emotional well-being if she is placed in the custody of Daniel at this
      time. There is no doubt that both Daniel and Joanie have been
      destructive influences on [E.R] regarding her relationship with
      Marsha. At the same time, Marsha has not behaved in the same
      manner towards Daniel. Marsha allowed [E.R.] to move to
      Vermillion to have a chance at a new school. She did not try to
      undermine [E.R.]’s relationship with Daniel while [E.R.] was there.
      On the other hand, [E.R.] was basically made to return home to
      Marsha in April after the disagreements between her and Joanie
      with Joanie describing it as a toxic situation. At the same time
      Daniel and Joanie were repeatedly disparaging Marsha in front of
      [E.R.] despite pleas by others for them not to do so. As stated
      above, Joanie now states that at this time she is going to be making
      the situation all about her. This is certainly not in [E.R.]’s best
      interest when the situation should be all about [E.R.] and what is in
      her best interests. Marsha has also indicated that if [E.R.] is placed
      in her custody she will not make [E.R.] return to [the school she
                                        9


      attended in Sioux City] and that the two of them will find another
      school for [E.R.] to attend.
             While it is clear that Marsha’s use of alcohol has had a
      negative impact on [E.R.], the court finds that this negative impact
      is dwarfed in comparison to the emotional and psychological abuse
      she has been exposed to in Daniel’s care. As a result the Court
      concludes that the long-term best interests of [E.R.] requires that
      her physical custody be placed with Marsha subject to Daniel’s
      reasonable rights of visitation.

We concur, and for the same reasons, we find it is in E.R.’s best interests to

grant Marsha physical care.

      III. Property Division.

      Dan also contests the property division provisions of the dissolution

decree, arguing the result is inequitable. He focuses on the parties’ only real

property, a home purchased in Sioux City in 2002 for $104,000. In order to

enable Marsha and Dan to obtain a mortgage on the home, Marsha’s parents

loaned the couple $7000 to pay off their debts before the purchase, though the

loan was never repaid. Marsha also used $5000 inheritance money toward the

purchase of the home.

      Over the years, Dan performed the labor to maintain and improve the

home. This included replacing the roof and siding, installing a deck, painting the

home’s interior, and installing new flooring and a new shower. Marsha paid the

cost of the maintenance.

      It is undisputed that at the time of dissolution, there were two mortgages

on the home, totaling over $90,000. The parties disagreed as to the home’s

value, however. Daniel claimed a value of approximately $140,000. In doing so,

he noted a home across the street had recently sold for $210,000, though he

acknowledged that home is larger.      Marsha claimed the home’s value was
                                        10


$109,000, which is the amount the couple listed on their March 2016 Chapter 7

bankruptcy schedules. Although both parties signed the bankruptcy petition, Dan

claims Marsha arrived at the $109,000 figure listed and he only signed the

petition after the fact.

       Citing the lack of “hard evidence” as to the current value of the home, the

district court averaged the values claimed by the parties, arriving at a figure of

$124,500. The court then reduced this amount by $5000 to reflect the amount of

inheritance money Marsha contributed toward its purchase, reaching a final value

of $119,500 for the purposes of the property distribution. The court awarded the

home to Marsha, who received property with a total net value of $27,710.44,

while the total net value of the property awarded to Dan equaled $9802.72. The

court then determined that, “in light of Daniel’s inconsistent employment during

the course of the parties’ marriage and the family relying primarily upon Marsha

and the generosity of her parents for stability at times, and that Daniel is leaving

the marriage with no debt,” it was equitable to deviate slightly from “a straight

50/50 division.” The court ultimately awarded $20,773.44—or fifty-five percent—

of the net assets to Marsha and $17,168.00—or forty-five percent—to Dan. To

reach these figures, the court ordered Marsha to pay Dan a property settlement

of $8000.00.

       Iowa Code section 598.21(5) requires marital property be divided

equitably in dissolution-of-marriage cases. See In re Marriage of Hansen, 733

N.W.2d 683, 702 (Iowa 2007). We must first determine which property is subject

to division, and then, considering the factors set forth in section 598.21(5), we
                                          11

must decide how to divide the property equitably. See In re Marriage of Fennelly,

737 N.W.2d at 102.

         Dan first argues the trial court undervalued the home, which he asserts

should be valued at $140,000. “Valuation is difficult and trial courts are given

considerable leeway in resolving disputes as to valuations.” In re Marriage of

Shanks, 805 N.W.2d 175, 177 (Iowa Ct. App. 2011). We will disturb the trial

court’s ruling only if there has been a failure to do equity. See In re Marriage of

Schriner, 695 N.W.2d 493, 496 (Iowa 2005). “Ordinarily, a trial court’s valuation

will not be disturbed when it is within the range of permissible evidence.”

Hansen, 733 N.W.2d at 703. Given the scant amount of evidence regarding the

home’s value, the figure arrived at by the district court was within the range of

permissible evidence.

         Dan also argues it was inequitable for the court to both deduct $5000 from

the home’s value and to award him less equity overall. Although the partners in

a marriage are entitled to a just and equitable share of the property accumulated

through their joint efforts, we do not require an equal division or percentage

distribution. See In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App.

2009).     Rather, we decide what is fair and equitable in each particular

circumstance. See id. Here, Marsha was awarded property with a net value that

is $3605.44 greater than the net value of the property awarded to Dan. We find

the division of property set forth in the decree is equitable.

         AFFIRMED.
