                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-028 / 13-0566
                            Filed February 19, 2014


IN RE THE MARRIAGE OF ALICIA R. WILLIAMS
AND JUSTIN WILLIAMS

Upon the Petition of
ALICIA R. WILLIAMS,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
JUSTIN WILLIAMS,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      A wife appeals and a husband cross-appeals the decree dissolving their

marriage raising issues of child custody and property distribution. AFFIRMED.



      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant/cross-appellee.

      Susan L. Ekstrom of Elverson, Vasey & Peterson, Des Moines, for

appellee/cross-appellant.



      Considered by Vogel, P.J., and Tabor and McDonald, JJ.
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VOGEL, P.J.

       Alicia Williams appeals, and Justin Williams cross-appeals, the decree

dissolving their marriage. Alicia claims the district court should have given her

physical care of the parties’ children and should have stricken or disregarded the

custody evaluator’s report.     Justin, on cross-appeal, claims the district court

should have awarded him one-half of Alicia’s 401(k) account. He also seeks

appellate attorney fees in this matter. After our de novo review, we affirm the

physical care and property distribution provisions of the district court’s decree.

We conclude the children’s best interests justify placing them in Justin’s physical

care, and the short-term nature of this marriage along with the rest of the

property distribution makes it equitable for Alicia to keep sole possession of her

401(k).

I. BACKGROUND FACTS AND PROCEEDINGS.

       Alicia and Justin were married in December 2009, after finding out they

were expecting their first child. Their first son was born in May 2010. After their

relationship turned rocky, Alicia filed to dissolve the marriage in March of 2012.

A few days after filing, the parties got in a heated altercation, and Alicia called the

police. Justin was arrested and charged with domestic abuse and harassment.

Justin ultimately entered an Alford plea to harassment, and the domestic abuse

charge was dropped. The court entered a no-contact order at sentencing.

       Alicia also filed for relief from domestic abuse under Iowa Code chapter

236 (2011). After a hearing the court concluded Alicia had not proven that Justin

engaged in domestic abuse. Thus, the court dismissed the case.
                                           3


       At the temporary hearing in the dissolution action the court granted the

parties joint legal custody of their child and placed physical care with Alicia

subject to Justin’s visitation.   The court set the child support obligation and

awarded Alicia possession of the martial home, ordering Justin to contribute

toward the mortgage payment. The court also appointed a custody evaluator,

Mary Hilliard, at Justin’s request.      During the pendency of the dissolution

proceeding, approximately three weeks before trial, Alicia delivered the parties’

second son.

       Following a three day trial, the court issued its dissolution decree in March

2013. The court noted there were allegations of domestic abuse made against

both parties. The court however found that neither party presented a physical

threat to the other at the present time, but rather, each had used these

accusations to attempt to bolster their own position in the dissolution action.

Both parties had refused to allow the other party to see the oldest child for

several weeks during the dissolution proceeding, and both behaved in a manner

unproductive to co-parenting. Following the advice of the custody evaluator, the

court determined the parties should have joint legal custody, granted Justin

physical care, and provided Alicia a liberal amount of visitation, which amounted

to fifty percent of the overnights.1 The court required the parties to engage the


1
  Alicia was granted alternating weekly visitation with Week A’s schedule being: Sunday
at 6 p.m. until Tuesday at 6 p.m. and Friday at 6 p.m. until Sunday at 6 p.m., and Week
B’s schedule being: Tuesday at 6 p.m. until Friday at 6 p.m. This schedule results in
each parent receiving seven overnights with the children every two weeks.
         While the parents here had roughly equal time with the children, the court
specifically awarded physical care of the children to Justin. Our focus to determine the
nature of the physical care arrangement is on the language used by the court and not
the number of overnights each parent receives. See In re Seay, 746 N.W.2d 833, 835
(Iowa 2008) (determining the off-set method of calculating child support should be
                                             4


services of a parenting coordinator for the next twelve months and ordered Alicia

to pay child support in accordance with the support guidelines.

       The court concluded the marital home had no equity and awarded it along

with its debt to Alicia.    The court ordered Alicia to pay Justin $5000 for his

interest in a car she sold during the dissolution proceedings, and it ordered Alicia

to pay Justin $2000 for his portion of the 2011 tax refund she received after

taking all of the applicable deductions. These payments were to be made in

$200 per month installments over the next thirty-five months. Finally, the court

awarded each party their own retirement accounts and bank accounts, while

assigning each their separate credit card debts, all based on the short-term

nature of the marriage.

       Both parties appeal.

II. SCOPE AND STANDARD OF REVIEW.

       We review dissolution of marriage cases de novo as they are heard in

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

examine the entire record and adjudicate anew the issues before us, though we

give weight to the findings of the district court, especially its determinations of

credibility. Id. We will disturb a property distribution award only where there has

been a failure to do equity. Id. Our only concern in determining child custody


applied in a case where the district court awarded shared care but the parenting time
was not equal); but see In re Marriage of Fox, 559 N.W.2d 26, 29 (Iowa 1997) (refusing
to apply the off-set support calculation where the record showed the child spent one-
third of her time with the father but the parties stipulated to shared physical care
because the court concluded the time the father spent with the child did not exceed that
typically enjoyed in a liberal visitation situation); see also In re Marriage of Hynick, 727
N.W.2d 575, 579-80 (Iowa 2007) (noting the difference between shared care and
physical care with visitation and noting visitation varies widely and “can even approach
an amount almost equal to the time spent with the caretaker parent” (emphasis added)).
                                              5

and care is the best interest of the children. In re Marriage of Fennelly, 737

N.W.2d 97, 101 (Iowa 2007).

III. PHYSICAL CARE.

          Alicia claims on appeal that she was the children’s primary caretaker,

particularly of Michael who was three weeks old at the time of trial, and as such,

she should be awarded physical care of both children. She admits that Justin

was a good father but claims there was substantial evidence that he controlled,

intimidated, and physically abused her, and placing the children in his physical

care is not in the children’s long-term best interests.

          Our objective when deciding which parent should have physical care is to

place the children “in the environment most likely to bring them to health, both

physically and mentally, and to social maturity.” In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007). We consider the nonexclusive lists of factors

found in Iowa Code section 598.41(3)2 along with other factors found in In re



2
    These 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 or
         whether the child has strong opposition, taking into consideration the
         child’s age and maturity.
         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 or by unsupervised or
         unrestricted visitation.
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Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).3                      Stability and

continuity are important factors to be considered because “the successful

caregiving by one spouse in the past is a strong predictor that future care of the

children will be of the same quality.” Hansen, 733 N.W.2d at 696–97.

       In this case the court, after hearing the allegations of abuse posed by both

parties, was convinced neither party presented a physical threat to the other. We

       j. Whether a history of domestic abuse, as defined in section 236.2,
       exists. In determining whether a history of domestic abuse exists, the
       court’s consideration shall include but is not limited to commencement of
       an action pursuant to section 236.3, the issuance of a protective order
       against the parent or the issuance of a court order or consent agreement
       pursuant to section 236.5, the issuance of an emergency order pursuant
       to section 236.6, the holding of a parent in contempt pursuant to section
       664A.7, the response of a peace officer to the scene of alleged domestic
       abuse or the arrest of a parent following response to a report of alleged
       domestic abuse, or a conviction for domestic abuse assault pursuant to
       section 708.2A.
       k. Whether a parent has allowed a person custody or control of, or
       unsupervised access to a child after knowing the person is required to
       register or is on the sex offender registry as a sex offender under chapter
       692A.
Iowa Code § 598.41(3).
3
  These factors include:
       1. The characteristics of each child, including age, maturity, mental and
       physical health.
       2. The emotional, social, moral, material, and educational needs of the
       child.
       3. The characteristics of each parent, including age, character, stability,
       mental and physical health.
       4. The capacity and interest of each parent to provide for the emotional,
       social, moral, material, and educational needs of the child.
       5. The interpersonal relationship between the child and each parent.
       6. The interpersonal relationship between the child and its siblings.
       7. The effect on the child of continuing or disrupting an existing custodial
       status.
       8. The nature of each proposed environment, including its stability and
       wholesomeness.
       9. The preference of the child, if the child is of sufficient age and maturity.
       10. The report and recommendation of the attorney for the child or other
       independent investigator.
       11. Available alternatives.
       12. Any other relevant matter the evidence in a particular case may
       disclose.
Winter, 223 N.W.2d at 166–67.
                                         7


agree. Both Justin and Alicia have historically provided care for the oldest child;

the age of the youngest at the time of the dissolution trial prevents an

assessment of the historical primary caregiver.

       The court considered, and ultimately agreed with, the custody evaluator.

Alicia asserts it was improper for the court to accept and rely on this evaluation

report because Hilliard ignored several key facts that undermine her conclusion

and unfairly favored Justin. Specifically, Alicia believes the report should have

been rejected because Hilliard viewed a video taken by Justin of one of the

visitation exchanges, and this video was not provided to Alicia during discovery,

though it was specifically requested.        Alicia objected to questions posed to

Hilliard about the video, which the court sustained. However, the court refused to

reject the whole report, instead stating it would take the lack of production of the

video into account as it evaluated and weighed the report.

       We have reviewed Hilliard’s report and find that there was no mention of

the video Alicia complains of. While Hilliard at trial admitted to seeing the video,

it was not listed in the report as an item Hilliard reviewed, and it does not appear

to have helped form the basis of any of her opinions. It is within the court’s

discretion to admit or exclude a custody evaluator’s report from the record. In re

Marriage of Kunkel, 555 N.W.2d 250, 254 (Iowa 1996). The custody evaluator’s

recommendation is not binding on the district court or on appeal.

       Based on our de novo review of the record, we agree with the district

court’s decision placing the physical care of the children with Justin. The court

noted it would have preferred to award shared physical care but could not

because of the parties’ inability to work together, their failure to foster the
                                              8


children’s relationship with the other parent, and the no-contact order that

remained in effect.        The court found Justin was better able to be fair in

overseeing and consulting with Alicia on parenting issues, justifying placing

physical care, and the decision making power that entails, with Justin. Alicia’s

visitation schedule is set at fifty-percent of the time, which is indicative of the

confidence the district court had in her ability to appropriately care for the

children. We affirm the district court’s decision on physical care.

IV. RETIREMENT ACCOUNT.

          In his cross-appeal, Justin claims the district court should have awarded

him fifty percent of Alicia’s 401(k). Justin asserts this is equitable in light of the

fact that Alicia was awarded the marital home without having to pay him any

equity.

          Our focus in dividing martial property is to do so equitably after

considering the factors in Iowa Code section 598.21(5).4                McDermott, 827



4
    These factors include:
         a. The length of the marriage.
         b. The property brought to the marriage by each party.
         c. The contribution of each party to the marriage, giving appropriate
         economic value to each party’s contribution in homemaking and child
         care services.
         d. The age and physical and emotional health of the parties.
         e. The contribution by one party to the education, training, or increased
         earning power of the other.
         f. The earning capacity of each party, including educational background,
         training, employment skills, work experience, length of absence from the
         job market, custodial responsibilities for children, and the time and
         expense necessary to acquire sufficient education or training to enable
         the party to become self-supporting at a standard of living reasonably
         comparable to that enjoyed during the marriage.
         g. The desirability of awarding the family home or the right to live in the
         family home for a reasonable period to the party having custody of the
         children, or if the parties have joint legal custody, to the party having
         physical care of the children.
                                           9


N.W.2d at 678. In this case the court refused to divide the retirement plans of the

parties in light of the short-term nature of the marriage. We agree this was

equitable in this case. Alicia had started funding her 401(k) with her employer

before the marriage. The marriage lasted less than three years. Both parties are

employed with good incomes, which should allow them each the financial

resources to save for retirement. Justin’s argument that the 401(k) needs to be

divided because Alicia was awarded the marital home holds little weight as the

district court found the home had no equity, as the assessed value was lower

than the amount secured by the mortgage. We affirm the district court’s property

distribution award.

V. APPELLATE ATTORNEY FEES.

       Finally, Justin claims he is entitled to appellate attorney fees.

       Appellate attorney fees are not a matter of right, but rather rest in
       this court’s discretion. Factors to be considered in determining
       whether to award attorney fees include: “the needs of the party
       seeking the award, the ability of the other party to pay, and the
       relative merits of the appeal.”




       h. The amount and duration of an order granting support payments to
       either party pursuant to section 598.21A and whether the property
       division should be in lieu of such payments.
       i. Other economic circumstances of each party, including pension
       benefits, vested or unvested. Future interests may be considered, but
       expectancies or interests arising from inherited or gifted property created
       under a will or other instrument under which the trustee, trustor, trust
       protector, or owner has the power to remove the party in question as a
       beneficiary, shall not be considered.
       j. The tax consequences to each party.
       k. Any written agreement made by the parties concerning property
       distribution.
       l. The provisions of an antenuptial agreement.
       m. Other factors the court may determine to be relevant in an individual
       case.
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In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006) (citation omitted). In

light of the fact that both parties have the ability to pay their own attorney fees

and the fact Justin’s cross-appeal was not granted, we decline to award appellate

attorney fees to Justin.

       Costs on appeal are assessed to Alicia.

       AFFIRMED.
