                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1102
                                Filed February 7, 2018


IN RE THE MARRIAGE OF ARMANDO SCOTT ORTIZ
AND ALISHA KAYLEEN ORTIZ

Upon the Petition of
ARMONDO SCOTT ORTIZ,
      Petitioner-Appellee,

And Concerning
ALISHA KEYLEEN ORTIZ,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Harrison County, Jeffrey L. Larson,

Judge.



       Alisha Ortiz appeals from the district court’s order following a trial for

dissolution of her marriage to Armando Scott Ortiz.            AFFIRMED AND

REMANDED FOR ENTRY OF NUNC PRO TUNC ORDER.



       Maura Sailer of Reimer, Lohman, Reitz, Sailer & Ullrich, Denison, for

appellant.

       Daniel Joseph Albert McGinn of McGinn, Springer & Noethe, P.L.C.,

Council Bluffs, for appellee.



       Heard by Danilson, C.J., and Vaitheswaran and Bower, JJ.
                                         2


DANILSON, Chief Judge.

       Alisha Ortiz appeals from the district court’s order following a trial for

dissolution of her marriage to Armando Scott Ortiz (Scott) and the court’s

corresponding custody determination regarding the parties’ two children, K.O.

and T.O. Alisha contends the court (1) failed to dissolve the parties’ marriage,

(2) should have granted Alisha physical care of the children, (3) failed to correctly

change Alisha’s last name, and (4) abused its discretion in denying Alisha’s

request for attorney fees. Both parties request appellate attorney fees. We find

no error or abuse of discretion in the district court’s physical-care and attorney-

fees determinations, and affirm.     To address the court’s errors regarding the

failure to address the dissolution of the marriage and Alisha’s name change, we

remand to the district court for entry of a nunc pro tunc order amending the

decree to expressly dissolve the marriage and change Alisha’s last name to

“Curnyn.” We deny the parties’ requests for appellate attorney fees.

I. Background Facts & Proceedings.

       Scott and Alisha married on August 25, 2013, and had two children: K.O.

born in 2013, and T.O born in 2014. The parties separated in early July 2016

when Alisha left the family home with the children and would not let Scott see

K.O. or T.O. for approximately six weeks.

       Scott was thirty-five years old at the time of trial and lives in a home that

he owns in Little Sioux. Scott has two older children in addition to K.O. and T.O.

Scott has joint custody of a seventeen-year-old son and full custody of a four-

year-old son, M.O. Scott rarely sees his seventeen-year-old son as his son lives

out of state and does not wish to travel to Iowa. Alisha served as M.O.’s primary
                                             3


caregiver during the parties’ marriage. Under her care, Alisha believed M.O. had

severe food allergies requiring a strict diet and that he was autistic because he

did not speak or interact with other children. After the parties’ separation, Scott

resumed full-time care of M.O. A letter from teachers in M.O.’s school district

reported “educators who have worked closely with [M.O.] have recently recorded

observable differences in [M.O.]’s behavior, development, and attitude as

compared to the previous school year.” The letter stated M.O. had begun to

actively participate in school and interact with other children. Scott also had M.O.

medically tested for allergies and it was determined he was only lactose

intolerant, requiring a much less restrictive diet.

       Scott works for J.A. King primarily as a scale technician. He stated his

hours are from 8:00 a.m. to 5:00 p.m. Monday through Friday, but he is also on

call and sometimes has to travel at very short notice.

       Alisha stated Scott has a propensity for violence and testified about violent

occurrences at trial. Alisha stated Scott raped her when she was pregnant with

K.O., and was often physically violent. For example, Alisha stated Scott has

thrown her into walls and left marks on her arm. Alisha also stated Scott killed

the family dog out of anger.1 Alisha offered photos of wounds on the children as

exhibits at trial, including a photo of T.O. with a fat lip, a photo of T.O. with a

bruise around his eye and a bruise by his temple, a photo of a scrape or burn on

T.O.’s upper arm, and photos of bruises on K.O.’s arms and legs. Alisha stated

the children were returned from being in Scott’s care with the wounds. Alisha


1
 Alisha stated Scott first broke the dog’s leg and then killed the dog by feeding it Alisha’s
pain pills and putting it in a bucket of vinegar causing the dog to suffocate.
                                         4


also stated both T.O. and K.O. were returned on one occasion with yeast

infections, resulting from staying in a diaper too long. A family development

specialist through the Family Development and Self Sufficiency (FADSS)

program2 explained that during a visit she had with Alisha she asked T.O. about

his black eye and he stated his “daddy” did it. As to the bruises on T.O.’s temple

and eye and to K.O.’s body, Scott explained:

             I would have to look back at the report to see what the
      explanation was on that. I think at that time one of them was [T.O.]
      had f[allen], but I can’t tell you exactly what it was. Busy raising—
      being a single dad full time, and kids get a lot of bruises, and I can’t
      remember how they got every single one of them.

      The department of human services completed three child-abuse

assessments—two based on allegations of physical abuse due to the children’s

reported injuries. The assessments were determined to be unfounded.

      Alisha was twenty-five years old at the time of trial and lives in Missouri

Valley. At the time of trial Alisha did not have a paying job but was working as an

intern and searching for full-time employment.       Prior to the marriage Alisha

worked for a company caring for handicapped individuals in their homes. During

the parties’ marriage Alisha did not work outside the home and was the primary

caregiver for the children.   Alisha utilized services from the Area Education

Agency as well as from Learning for Life to help with the children’s growth and

development. Individuals working with Alisha and the children in each program

testified at trial they do not have concerns with Alisha or her parenting. The

individual from the Learning for Life program stated:


2
 FADSS is a voluntary program that provides services to families who receive the
Family Investment Program grant.
                                          5


              I think Alisha does a really good job. She’s a really good
       observer of her children. When I ask her questions, she’s able to
       answer them. You know, what do you think they will do, or how do
       you think they will react to, you know, something that we’re doing?
       She is very focused on her children, . . . . She knows them well,
       their personalities, their struggles, that kind of thing.

       However, Scott expressed concerns respecting Alisha’s judgment. Scott

stated that after Alisha left the family home he found conversations Alisha had

had with individuals through social media.         Alisha appeared to be having

romantic conversations with men living in other countries in early to mid-July.

Alisha spoke of going to live overseas and marrying the men.                  In one

conversation Alisha sent a picture of a gun with the message, “Scott[’s] gun, I will

learn to use tomorrow, [t]o protect myself and kids . . . .”        Alisha also sent

pictures of the children to the men, and in one conversation continued to speak

with a man who said he was, “[c]oming to usa to bring [K.O.]” back to his country.

       Scott also stated Alisha had previously made suicidal threats.           Scott

explained he was not on time to pick the children up at an agreed-upon

exchange location and Alisha “stated if she had a gun, she would have—sh[ot]

herself.” At the time of the trial, Alisha was pregnant with a child and stated Scott

was not the father of the child.

       From September 12, 2016, to the commencement of trial on April 12,

2017, the parties participated in a shared-physical-care arrangement pursuant to

an order on temporary matters. Other than Alisha’s complaints that Scott was

often not on time to pick up or drop off the children, the parties generally testified

they were able to communicate and exchange the children without incident.
                                          6


Acknowledging the parties “have been able to work well within the court’s

temporary order,” the district court ultimately held:

               Pursuant to the direction in 600B.40 of the Iowa Code
       [(2016)], the court has reviewed the facts of the present case in
       light of the factors set forth in section 598.41 in determining which
       custody arrangement is in the minor children’s best interest.
       Having considered these factors and those raised during the trial,
       the court finds that it is in the minor child’s best interest to be
       placed in the parent’s shared physical care.
               The court finds that the minor children shall be placed in the
       joint legal and shared physical care of Scott and Al[i]sha.

       The court also ordered the parties to pay their own attorney fees.

Following entry of the court’s order, Alisha filed motion pursuant to Iowa Rule of

Civil Procedure 1.904(2), requesting the court amend its findings including the

physical-care, attorney-fees, and name-change determinations. The court left its

physical-care and attorney-fees determinations in place and ordered Alisha’s

name to be changed to Alisha “Kurnyn,” despite Alisha’s motion stating her name

should be changed to Alisha “Curnyn.” Alisha appeals.

II. Standard of Review.

       We review dissolution proceedings de novo. In re Marriage of McDermott,

827 N.W.2d 671, 676 (Iowa 2013). “We give weight to the findings of the district

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

are not binding upon us.” Id. “We will disturb the court’s ‘ruling only when there

has been a failure to do equity.’” Id. (citations omitted).

       We review the district court’s denial of attorney fees for an abuse of

discretion. In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013). “We

reverse the district court’s ruling only when it rests on grounds that are clearly

unreasonable or untenable.” Id.
                                           7


III. Analysis.

       On appeal, Alisha maintains the district court erred in (1) failing to order

the dissolution of the marriage, (2) determining the parties will have shared

physical care of the children, (3) failing to properly change Alisha’s name, and (4)

failing to grant Alisha’s request for attorney fees.

       (1) Failure to Dissolve the Marriage. In its order, the district court found,

“The material allegations of Scott’s petition are supported by competent

evidence, and the court should enter an order dissolving the marriage, . . .”

However, the court failed to actually order the dissolution of the parties’ marriage.

Neither party disputes that the marriage should be dissolved. On our review of

the record, we find there is substantial evidence of a breakdown in the marriage

warranting dissolution of the parties’ marriage. See Iowa Code § 598.17(1). We

find the court’s failure to expressly order the dissolution of the marriage was due

to inadvertence. We therefore remand to the district court for the purpose of

entering a nunc pro tunc order to amend the decree and expressly provide for a

dissolution of the marriage.

       (2) Physical Care. Alisha asserts the district court used the improper

analysis when reaching its physical-care determination.            Alisha contends

consideration of the factors enumerated in Iowa Code section 598.41 “is relevant

in considering what custody arrangement is in the best interests of the minor

children if the parents do not agree to joint legal custody.”         Citing section

598.41(4), Alisha argues, because the parties agreed to joint legal custody, the
                                            8


section 598.41 factors do not apply. Certainly the section 598.41(3)3 factors are

relevant considerations when determining if a shared-physical-care arrangement

is in the best interests of the parties where the parties have not agreed to joint

physical care. See In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007)

(“In Iowa, the basic framework for determining the best interest of the child has

long been in place.      In the context of custody decisions, the legislature has

established a nonexclusive list of factors to be considered. . . . Although Iowa

Code section 598.41(3) does not directly apply to physical care decisions, we

have held that the factors listed here as well as other facts and circumstances

are relevant in determining whether joint physical care is in the best interests of

the child.”) (citations omitted).

       Additionally, citing Hansen, Alisha contends a determination of whether or

not joint physical care is in the children’s best interest can only be made after the

3
  The factors include:
                (a) Whether each parent would be a suitable custodian for the
        child.
                (b) Whether the psychological and emotional needs and
        development of the child will suffer due to lack of active contact with and
        attention from both parents.
                (c) Whether the parents can communicate with each other
        regarding the child’s needs.
                (d) Whether both parents have actively cared for the child before
        and since the separation.
                (e) Whether each parent can support the other parent’s
        relationship with the child.
                (f) Whether the custody arrangement is in accord with the child’s
        wishes . . . .
                (g) Whether one or both the parents agree or are opposed to joint
        custody.
                (h) The geographic proximity of the parents.
                (i) Whether the safety of the child, other children, or the other
        parent will be jeopardized by the awarding of joint custody . . . .
                (j) Whether a history of domestic abuse, as defined in section
        236.2, exists.
                ....
Iowa Code § 598.41(3).
                                          9

determination there are two suitable parents. The court in Hansen stated, “In

considering whether to award joint physical care where there are two suitable

parents, stability and continuity of caregiving have traditionally been primary

factors.” 733 N.W.2d at 696. We agree joint physical care would not be in the

best interest of the children where one parent cannot provide suitable care. In

addition to suitability, stability, and continuity of caregiving, we consider whether

“one spouse has been the primary caregiver,” “the ability of spouses to

communicate and show mutual respect,” “the degree of conflict between [the]

parents,” and “the degree to which the parents are in general agreement about

their approach to daily matters.” Id. at 698-99.

       Using this analysis, and upon our de novo review, we determine joint

physical care is in K.O. and T.O.’s best interest.

       Although both parties express concern respecting the ability of the other

party to parent the children safely, they have been able to work together

reasonably well under the temporary shared-care arrangement. Despite Alisha’s

reports of physical abuse by Scott, each child-abuse assessment completed was

determined to be unfounded. Alisha’s allegations of abuse toward her and the

children are troubling, to say the least, because a history of domestic abuse or

the likelihood of direct physical harm or significant emotional harm to the children

may outweigh any other factor. See Iowa Code § 598.41(1)(a) (stating the court

shall “assure the child the opportunity for the maximum continuing physical and

emotional contact with both parents . . . unless direct physical harm or significant

emotional harm to the child, other children, or a parent is likely to result”); see

also § 598.41(1)(b) (providing that if there is a history of domestic abuse “a
                                         10


rebuttable presumption against the awarding of joint custody exists”). Here, the

district court did not find a history of domestic abuse, and we agree the record is

not sufficient to reach that conclusion. Although we are concerned about the

well-being of the children, we, like the district court, rely upon the fact that three

investigations by the department of human services proved to be unfounded.

       To her credit, Alisha has been the historic primary caregiver to the

children, but Scott has shown an ability to successfully parent by his care of M.O.

full-time.   M.O. is improving in his development under Scott’s care after

previously being cared for by Alisha. Alisha has shown some instability in her

mental state—she made a threat to shoot herself—but the record does not

indicate Alisha continues to struggle with suicidal thoughts. Service providers

working in the home with Alisha and the children testified Alisha exhibits a strong

bond with the children and an ability to parent them appropriately.

       The denial of visitation by one parent to the other parent may also

constitute a significant factor in physical-care determinations. See Iowa Code

§ 598.41(1)(c). Yet, other than the six-week period when Alisha first left the

family home, she has not denied Scott time with the children, and has even

provided exceptions to the shared-care schedule to allow the children time with

Scott’s extended family.     We do have concerns about awarding Alisha sole

physical care in light of her sharing photos of a gun and the children to men from

other countries.   Apparently these communications have ceased and Alisha

assures that she will no longer act upon her words expressed on social media

platforms.   We note any removal of the children from Scott’s vicinity would

adversely affect his contact with the children.
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       There is also no evidence in the record that either party’s home is

unsuitable for the children.      Scott and Alisha live about twenty-five minutes

apart—and within the same school district—allowing for a continued shared-care

arrangement.4 Both parties agree to allow the children to be exposed to the

other’s religion and to permit the children to decide what religion they wish to

practice when they are of an appropriate age. The children’s best interest will be

served by allowing maximum time with each parent.                     See Iowa Code

§ 598.41(1)(a) (“The court, insofar as is reasonable and in the best interest of the

child, shall order the custody award, including liberal visitation rights where

appropriate, which will assure the child the opportunity for the maximum

continuing physical and emotional contact with both parents after the parents

have separated or dissolved the marriage, . . .”).

       Upon our de novo review, we affirm the district court’s determination the

parties will share physical care of the children.

       (3) Name Change.         Alisha also appeals the district court’s mistake in

changing her last name to “Kurnyn” rather than “Curnyn” as requested. We find

this is also due to the inadvertence or oversight of the district court.              We

accordingly remand for entry of a nunc pro tunc order amending the decree to

change Alisha’s last name to “Curnyn.”

       (4) Attorney Fees.           Alisha also challenges the district court’s

determination that both parties will pay their own attorney fees.              “Whether


4
  At the time of trial, Alisha stated she wishes to move to Council Bluffs or Omaha in the
future, which would result in about a forty-five minute commute between the parties.
However, she was still living in Missouri Valley, and we will not speculate here on
possible events.
                                          12


attorney fees should be awarded depends on the respective abilities of the

parties to pay.” Kimbro, 826 N.W.2d at 704 (citation omitted). “To determine the

ability to pay, we review the parties’ entire financial picture, ‘including their

respective earnings, living expenses, and liabilities.’” Id. (citation omitted).

        Although Alisha was not earning an income at the time of trial, the record

reflected she is qualified for employment, and Alisha stated she intended to

obtain a paying job in the near future. After determination of the assets and

debts belonging to each party, the district court ordered an equalization payment

of $15,938.50 to be paid by Scott to Alisha. On consideration of Alisha’s ability to

earn an income, the allocation of assets and debt, and the equalization payment,

the district court did not abuse its discretion in ordering each party to pay their

respective attorney fees and we affirm.

        (5) Appellate Attorney Fees.           Both parties also request appellate

attorney fees. “An award of appellate attorney fees is not a matter of right but

rests within our discretion.” In re Marriage of Applegate, 567 N.W.2d 671, 675

(Iowa 1997).     “In determining whether to award appellate attorney fees, 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

decision of the trial court on appeal.” Id.

        Weighing Scott’s greater ability to pay attorney fees and Alisha’s primarily

unsuccessful appeal, we find appellate attorney fees are not warranted in this

case.
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IV. Conclusion.

      We conclude shared physical care is in the children’s best interest, and we

affirm on that ground. We also find the district court did not abuse its discretion

in ordering each party to pay their attorney fees and affirm. We do, however, find

the district court inadvertently failed to expressly order the dissolution of the

marriage and to properly change Alisha’s last name to “Curnyn” as requested.

We therefore remand to the district court for entry of a nunc pro tunc order

amending the dissolution decree to expressly dissolve the marriage and change

Alisha’s last name to “Curnyn.”     We deny the parties’ request for appellate

attorney fees. Costs are equally assessed against the parties.

      AFFIRMED AND REMANDED FOR ENTRY OF NUNC PRO TUNC

ORDER.
