                   IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1918
                             Filed September 28, 2016


IN RE THE MARRIAGE OF JESSE JACOB LEIB
AND ABBY JO LEIB

Upon the Petition of
JESSE JACOB LEIB,
      Petitioner-Appellee,

And Concerning
ABBY JO LEIB,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



       Abby Jo Leib appeals the physical-care provision and certain property and

liability-allocation provisions of the decree dissolving her marriage to Jesse

Jacob Leib. AFFIRMED AS MODIFIED AND REMANDED.




       Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,

for appellant.

       Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellee.



       Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
                                          2


MULLINS, Judge.

       Abby Jo Leib appeals the physical-care provision and certain property and

liability-allocation provisions of the decree dissolving her marriage to Jesse

Jacob Leib. We affirm as modified and remand.

    I. Background Facts and Proceedings

       Abby and Jesse were married in June 2008. The parties have four minor

children: S.L., B.L, G.L., and T.L., who were fifteen, six, four, and two,

respectively, at the time of trial.

       Abby, born in 1982, has a degree in welding and business management,

is employed as a welder, and makes $29,000 annually.               Abby began this

employment in February 2015. Her workday begins at 9 a.m. and usually ends

at 6 p.m., and she works a forty-hour workweek, although her schedule is flexible

to accommodate the children’s schedules. Abby is able to get the children up,

ready, and off to school or daycare in the morning. From 2008 to 2012, Abby ran

an in-home daycare while providing care to her own children. From 2012 to

2014, she was exclusively a stay-at-home mother, and ran a small leather

business out of the home. During the course of the marriage, Abby was the

primary caregiver to the children.1 It is undisputed the children are healthy and

well-adjusted and the school-aged children are doing well academically. It is

further undisputed that both parties love their children.          Some testimony

provided, however, indicated the eldest child had a strained relationship with her

father, had heated fights with her father, and preferred to live with her mother.

1
 At trial, Jesse conceded it was by agreement of the parties that Abby stayed home and
cared for the children, an arrangement they had intended to continue until all of the
children were in school.
                                            3


       Jesse, born in 1972, is employed as an electrician by John Deere and

makes in excess of $90,000 annually. Jesse’s usual shift commences at 6 a.m.

and ends at 2:30 p.m., although he works overtime as well. 2 At trial, Jesse

indicated he had some flexibility in his scheduling, allowing him to start at 6:30

a.m. and to adjust his overtime and not work on the weekends he has the

children. However, the record reflects Jesse works most days of the week and is

regularly in before 6:30 a.m.3 On the days he has the children, Jesse intends to

drop the three youngest children off with his parents in the morning before

heading to work because of his early shift. The children will then sleep at their

grandparents’ house until the grandparents take them to school. The parties

attempted to institute this routine when the divorce was pending, but the children

wanted Abby to take them to school, so she continued to cover the morning

hours of the children’s day. Since Abby has returned to work, Jesse’s parents

provide daycare for the youngest child.

       At the time of trial, both parties resided in the marital residence in

Dubuque, Iowa, although Abby was requesting to move to Cuba City, Wisconsin,

closer to where she works and her family resides. Abby’s parents work part-time




2
  This overtime is often worked earlier in the day, with Jesse arriving at work as early as
2 a.m.
3
  Jesse’s clock-in records for 2014 show he worked every day in January except for five
days, every day in February except for two days, every day in March except for four
days, every day in April except for six, every day in May except for five days, every day
in June except for two days, and every day in July except for three days. In August, he
took off eight days in a row, in addition to four other days. In September, he worked all
but five days, and he worked every day in October. Jesse took off the first nine days
and the last four days in November. He also took off the last eight days in December. In
2015, Jesse worked all but five days in January, all but three days in February, and all
but one day in March.
                                        4


jobs and are available to assist with childcare when needed.        Cuba City is

approximately a twenty-minute commute from Dubuque.

      Abby testified to a marriage plagued with communication issues.        She

stated Jesse was controlling, they fought constantly, usually about the children

and money, and saw four different marriage counselors during their six years of

marriage. In June 2014, Abby moved out of the marital home with the children.

      On July 3, 2014, Jesse filed a petition for dissolution of marriage. That

same day the court entered an order requiring that the children remain within the

jurisdiction of the court; Abby then moved back into the marital home with the

children. In October, Abby filed a request for temporary relief, citing Jesse’s

anger and verbal abuse and requesting arrangements be made so she could

move out of the marital home with the children.        Following a hearing held

January 29, 2015, the court entered its order requiring, among other things, that

the children remain in the marital home, that Jesse agree before Abby could take

the children to visit her family in Wisconsin, and imposing a child-care

arrangement where the children rotated between the parents every four days.

      Because of the temporary order, Abby remained in the marital home with

the children. The parties agree their relationship continued to deteriorate due to

the stress of the divorce and their living arrangement. At trial, Abby presented

audio recordings of fights between herself and Jesse. In these recordings, Jesse

screams and curses at Abby and berates her in front of the children. In one

recording, the eldest child asked her parents to stop arguing and cursing

because the younger children can hear them. Abby testified these recordings
                                          5


reflected the regular communications between the parties. Jesse testified they

often fight, with Abby also yelling and cursing in front of the children.

       Abby also testified Jesse routinely called her stupid and selfish in front of

the children; a journal Abby kept indicates these events predated the filing of the

petition for dissolution. Abby’s sister testified to a telephone call she had with

Abby when she heard Jesse yelling at Abby and the children crying in the

background. The district court also noted the parties had poor communication

through text messaging.

       The parties also had disputes over money—including the timeliness of bill

payments, communication about when money was being removed from the

accounts and how it was spent, and Jesse’s removal of Abby from all financial

accounts—such as checking accounts and credit accounts—in November 2013

so he could require her to request money before spending it. The parties also

disputed the money Abby spent on the maintenance of the horses she owned—

horses she had acquired prior to the marriage. Additionally, the parties disputed

the appropriate approach to disciplining the children.

       Abby testified Jesse was controlling both in the marriage and during the

separation. The record reflects that, even before their separation, Jesse inquired

extensively into Abby’s plans and called others to inquire about Abby. Abby

testified that, since the temporary order, Jesse has denied her the right to go visit

her family with the children or granted her the right only after extensively

questioning her about her plans. Jesse admitted to extensively inquiring about

Abby’s location and plans when she takes the children to visit her parents. Jesse
                                         6


admitted he does not trust Abby, indicating he did not think Abby was at work

when she said she was.

       In May 2015, the parties filed a pretrial stipulation in which they agreed to

the following relevant things: (1) the distribution of the dependency exemptions,

(2) the distribution of their vehicles, checking and savings accounts, Abby’s

horses, and Abby’s pension; and (3) the distribution of their liabilities, including

an approximate $31,000 loan owed on Jesse’s 401(k) policy, for which Jesse

accepted liability.   The parties disputed physical care and visitation, alimony,

attorney fees, and the distribution of Jesse’s 401(k), Jesse’s pension, and

monies held in a trust account.

       At the conclusion of a three-day trial, the district court allowed Abby to

move to Wisconsin and lifted any restrictions on her taking the children to

Wisconsin. The dissolution decree was filed on June 29, 2015. In the decree,

the court awarded joint custody and joint physical care of the children, with the

children to rotate between the parents on a weekly basis. The decree contained

the following provisions: Jesse would provide insurance for the children, Jesse

would pay $935.97 monthly in child support, Jesse would pay alimony in the

amount of $1000 per month for three years, Jesse would continue to carry life

insurance policies on the children, and the parties would evenly divide 47% of

Jesse’s 401(k)—the portion Jesse argued and the court determined was a

marital asset.   Contrary to the parties’ stipulation, the district court awarded

Jesse the dependency exemptions for the three eldest children and Abby the

dependency exemption for the youngest child and split the debt owed on the

401(k) evenly between the parties. The court awarded Jesse the marital home
                                         7


and Abby the $6000 debt owed to her parents, and otherwise adopted the

distribution set forth by the parties in the pretrial stipulation.   The court also

instructed Jesse to pay $3000 of Abby’s attorney fees and court costs.

       On July 13, 2015, Abby filed a motion to amend or enlarge, asking, among

other things, that the court adopt the pretrial stipulation with regard to the

dependency deductions, allocate the remainder of the monies held in trust

accounts, and divide Jesse’s pension between the parties. Jesse did not object

to Abby’s request regarding the dependency deductions or object to the division

of the marital portion of his pension and also requested the monies held in trust

be divided, at least in part, to cover Abby’s attorney fee award. Jesse also filed a

motion to amend or enlarge in which he requested, in relevant part, the court

downward adjust its calculation of his annual income and require the children to

attend school in Dubuque. Abby opposed any downward adjustment in Jesse’s

estimated income or payment.

       Following the parties’ respective motions to amend and enlarge, the court

adjusted its calculation of Jesse’s income to $90,512 and correspondingly his

child support obligation, denied the parties’ request to adjust the dependency

deductions, and declined to divide Jesse’s pension.        The court required the

parties to agree on where the children were to attend school or, in the event the

parties were unable, required the children to remain in the Dubuque school

system. Finally, the court designated $2652.04 of the money in trust to satisfy

Jesse’s obligation to pay for Abby’s attorney fees and awarded Abby the

remaining $2011.

       Abby appeals.
                                         8


       II.    Scope and Standard of Review

       We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must

depend upon the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (citation omitted).

   III. Analysis

       A. Physical Care

       Where child custody and physical care are at issue in marriage dissolution

cases, the primary consideration is the best interests of the children. Iowa R.

App. P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).

The court must consider joint physical care if requested by any party, and if it

denies joint physical care, the court must make specific findings of fact and

conclusions of law that awarding joint physical care is not in the children’s best

interests.   Iowa Code § 598.41(5)(a) (2013); In re Marriage of Hansen, 733

N.W.2d 683, 692 (Iowa 2007). Our law provides a nonexclusive list of factors the

court shall consider in determining a custodial arrangement, see Iowa Code

§ 598.41(3), as well as nonstatutory factors, see Will, 489 N.W.2d at 398 (citing

In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974)). Factors to be

considered in determining whether joint physical care is in the children’s best

interests include (1) continuity, stability, and approximation; (2)“the ability of

spouses to communicate and show mutual respect”; (3) “the degree of conflict
                                          9


between parents”; and (4) “the degree to which the parents are in general

agreement about their approach to daily matters.” Hansen, 733 N.W.2d at 696-

99. Not all factors are given equal consideration, and the weight of each factor

depends on the specific facts and circumstances of each case. In re Marriage of

Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998).

        First, we note the district court made no credibility findings. Occasionally,

we are able to discern some credibility determinations from the findings of fact.

That is not the case here. There are arguably no more than nine sentences in

the findings of fact relating to custodial matters, but those findings only recognize

“the parties love their children but have different parenting styles,” “the parties

[have] poor interaction in front of the children,” there has been “yelling and

sarcasm,” the children are doing well, and the parties are struggling and there “is

a great deal of anger and distrust.” After reciting some of the applicable law, the

decree provides us almost no analysis for review of the application of law to the

facts. Consequently, there is little basis for us to give weight to the conclusions

reached by the district court. See generally Iowa R. App. P. 6.904(3)(g).

        On appeal, Abby alleges joint physical care was not properly before the

district court and was not appropriately awarded. As to Abby’s first argument,

Jesse explicitly requested joint physical care in the parties’ pretrial stipulation.

Further, at trial, Jesse reiterated his request that the court award joint physical

care. Accordingly, joint physical care was properly before the district court. We

next turn to Abby’s contention the district court should have awarded her physical

care.
                                          10


       As we consider the factors of continuity, stability, and approximation, we

note Abby has been the primary caregiver to these children for their entire lives.

See Hansen, 733 N.W.2d at 700 (noting “[f]or most of the marriage, [the mother]

has been the primary caregiver” and thus “[t]he concepts of continuity, stability,

and approximation . . . cut strongly against joint physical care as a quality

alternative least disruptive to the children and most likely to promote their long-

term physical and emotional health”).          Abby provided in-home care for the

children through 2014. Around six months before trial, Abby returned to work—

first part time and then full time.      Even when working full time, Abby was

responsible for the children in the mornings, as her work schedule allowed her to

start work at a later hour than Jesse.

       Jesse, on the other hand, has worked constantly to meet the financial

needs of the family—putting in overtime and often working weekends.              Trial

testimony supports that, when not working, Jesse regularly spends at least one

to two evenings a night away from the marital home relaxing at his friend’s

house. Since Abby has returned to work, Jesse often takes care of the children

on the afternoons and evenings Abby is not around. The eldest daughter also

watches the children and Jesse’s parents help out. Plenty of testimony was

presented to support that both parents cook meals, bathe the children, and

attend their events.    Abby indicated, however, that the vast majority of the

responsibility for the children fell on her both before and after Jesse filed for

dissolution.    While Jesse disagrees with her division of the parental

responsibilities, it is clear from the record that joint physical care does not mirror

the caregiving of the parents predissolution. See id. at 697 (noting the relevant
                                        11


consideration that “the caregiving of parents in the post-divorce world should be

in rough proportion to that which predated the dissolution”).

       Next, we consider the parties’ ability to communicate and show mutual

respect.   See Iowa Code § 598.41(3)(c); Hansen, 733 N.W.2d at 698.            The

record reflects the parties have a history of poor communication, with both

parties cursing, name calling, and arguing in front of the children. While the

district court noted the communication issues were exacerbated by the parties’

forced cohabitation while the divorce was pending, trial testimony supports that

these communication issues long predated the separation. Jesse feels Abby

often ignores his questions, while Abby feels bombarded by a plethora of

questions before Jesse will agree to what she feels are the simplest requests.

As a result of financial disputes between the parties, Jesse removed Abby from

all financial accounts to require her to request and explain her use of money.

Further, Jesse admitted he does not trust Abby. See Hansen, 733 N.W.2d at

698 (“A lack of trust poses a significant impediment to effective co-parenting.”).

The record lacks the requisite evidence supporting the parties’ ability to

communicate and show respect.

       As to the third factor, our supreme court has noted:

       Joint physical care requires substantial and regular interaction
       between divorced parents on a myriad of issues. Where the
       parties’ marriage is stormy and has a history of charge and
       countercharge, the likelihood that joint physical care will provide a
       workable arrangement diminishes. It is, of course, possible that
       spouses may be able to put aside their past, strong differences in
       the interest of the children. Reality suggests, however, that this
       may not be the case.
                                        12

Id. While the district court believed the parties’ love for their children would

prevail after the parties were able to move into separate accommodations, the

history of the parties’ relationship does not support this. Even when Abby was

visiting her family, Jesse’s substantial distrust of Abby was evident by his

repeated texting and calling her to inquire about the details of and reasoning for

her stay. Moreover, “[t]he prospect for successful joint physical care is reduced

when,” as here, “one party objects to the shared arrangement.” Id.

       As to the fourth Hansen factor, which considers “the degree to which the

parents are in general agreement about their approach to daily matters,” id., the

district court found “[t]he parties love their children but have different parenting

styles,” with “one parent [being] liberal and the other [being] strict in the way of

discipline techniques.”     The record reflects Abby previously wanted to

homeschool the children, while Jesse was against homeschooling. The parties

are unable to agree on appropriate discipline and where the children should be

registered for school.

       Upon our de novo review of the “total setting presented” in this case,

based on our factual findings and applicable law recited above, we determine

that joint physical care is not in the best interests of the children. Id.; see also

Iowa Code § 598.41(5)(a). Having determined joint physical care is not in the

children’s best interests, we “must next choose which caregiver should be

awarded physical care.” Hansen, 733 N.W.2d at 700.

       There is no dispute that both parents are suitable custodians for their

children, capable of meeting their psychological and emotional needs. See Iowa

Code § 598.41(3)(a)-(b); see also Winter, 223 N.W.2d at 166-67 (noting we must
                                         13


consider the “emotional, social, moral, material, and educational needs of the

child[ren],” the “characteristics of each parent,” and the parent’s ability to provide

for those needs). Communication remains an issue for the parties, see Iowa

Code § 598.41(3)(c), although the issue is, at least in part, mutual. However,

both parents acknowledge the other parent is a good parent who loves the

children. There is no indication either parent would interfere with the other’s

relationship with the children. See id. § 598.41(3)(e).

       Again, “the factors of continuity, stability, and approximation are entitled to

considerable weight” and favor placement of the children with Abby. Hansen,

733 N.W.2d at 700; see also Iowa Code § 598.41(3)(d).              The children are

healthy, well-adjusted, and performing well in school. See Hansen, 733 N.W.2d

at 697 (“[S]uccessful caregiving by one spouse in the past is a strong predictor

that future care of the children will be of the same quality.”).      We also note

evidence was presented at trial that the eldest child preferred to live with her

mother, although the child did not testify. See Iowa Code § 598.41(3)(f); see also

Winters, 223 N.W.2d at 166-67 (noting we must consider “[t]he interpersonal

relationship between the child and each parent” and “[t]he preference of the child,

if the child is of sufficient age and maturity”). Although we recognize a potential

change in schools could be disruptive in the short run, in total, we find the long-

term best interests of the children are served by placing them in the physical care

of their mother. We remand the matter for the district court to consider the

appropriate liberal visitation to be awarded to Jesse in the best interests of the

children and for recalculation of child support.
                                           14


       B. Property Allocation

       Abby challenges four economic provisions of the dissolution decree:

(1) the division of Jesse’s 401(k); (2) the division of the loan on the 401(k); (3) the

division of Jesse’s John Deere pension; and (4) the division of the dependency

exemptions. In matters of property distribution, we are guided by Iowa Code

section 598.21. The parties in a dissolution action “are entitled to a just and

equitable share of the property accumulated through their joint efforts.” In re

Marriage of O’Rourke, 547 N.W.2d 864, 865 (Iowa Ct. App. 1996). Iowa law

does not require an equal division, but rather, “what is fair and equitable in each

circumstance.” In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App.

2001). “Equitable distributions require flexibility and concrete rules of distribution

may frustrate the court’s goal of obtaining equitable results.” In re Marriage of

Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997). Thus, “it is inherent in the

court’s equitable powers, to make appropriate adjustments, according to the

unique facts of each case.” Id.

           1. 401(k) Division

       In its decree, the district court determined 47% of the 401(k) constituted a

marital asset, as Jesse testified he had been funding his 401(k) since 1995 and

had rolled over his 401(k) through four jobs. The district court equally divided the

47% between the parties.        Abby claims on appeal the entirety of the 401(k)

should have been equally divided. We disagree with Abby’s contention she is

entitled to half of the entirety of the 401(k) and affirm the district court.
                                          15


          2. 401(k) Loan

       In the pretrial stipulation, the parties agreed to the division of their marital

property, except for Jesse’s pension and 401(k) and the cash held in trust. Jesse

accepted liability for the $31,706.29 loan taken against his 401(k). As addressed

above, when dividing Jesse’s 401(k), valued at $113,849.78, the district court

adopted the division sought by Jesse, dividing only the portion that accrued

during the parties’ marriage. We determine it was inequitable for the district court

to not adopt the distribution of the debt agreed to by the parties. We therefore

modify the decree and assign the 401(k) loan to Jesse, in conformity with his

agreement in the pretrial stipulation.

          3. John Deere Pension

       In the pretrial stipulation, the parties disputed the appropriate division of

Jesse’s John Deere pension. The division of the pension was not addressed in

the decree. Both parties requested the district court address this omission in

their respective motions to amend or enlarge: Abby sought to have the pension

divided equally while Jesse sought to have only the marital portion divided

equally. The court did not address the pension in its order on the motions. On

appeal, Abby requests division in accordance with the Benson formula. See In re

Marriage of Benson, 545 N.W.2d 252, 255-56 (Iowa 1996). Jesse argues the

district court’s failure to divide the pension is fair. The Iowa Code requires district

courts to divide marital property between the parties.           See Iowa Code §

598.21(1); see also In re Marriage of McDermott, 827 N.W.2d 671, 682 (Iowa

2013). In this case, the Benson formula would equitably divide this asset, and

we see no reason to deviate from its application. We remand for the district court
                                          16


to order the appropriate allocation and direct counsel to prepare the necessary

qualified domestic relations order.

          4. Income Tax Exemptions

       Abby appeals the district court’s deviation from the pretrial stipulation in its

award of tax exemptions and credits for the children.          In light of the above

change in the physical-care arrangement, we remand for the district court to

determine the appropriate division of the income tax exemptions and credits for

the children. See Iowa Ct. R. 9.6; see also In re Marriage of Okland, 699 N.W.2d

260, 269-70 (Iowa 2005).

       C. Appellate Attorney Fees

       Both parties request appellate attorney fees. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s discretion.”      Okland, 699

N.W.2d at 270. “[I]n determining whether to award attorney fees,” we consider

“the needs of the party seeking the award, the ability of the other party to pay,

and the relative merits of the appeal.” Id. (citation omitted). Having considered

these factors, we determine Jesse shall pay $2500 of Abby’s appellate attorney

fees. Costs shall be assessed to Jesse.

   IV. Conclusion

       For the foregoing reasons, we modify the terms of the decree to award

physical care of the children to Abby.         We remand for a determination of

visitation, child support, allocation of income tax exemptions and credits, and

other related matters. We modify the decree to assign the 401(k) loan to Jesse

and to allocate the John Deere pension pursuant to the Benson formula.

       AFFIRMED AS MODIFIED AND REMANDED.
