                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2146
                            Filed September 10, 2015

IN RE THE MARRIAGE OF JOSHUA JAMES COCHRAN
AND MELISSA CHRISTINE COCHRAN

Upon the Petition of
JOSHUA JAMES COCHRAN,
      Petitioner-Appellant,

And Concerning
MELISSA CHRISTINE COCHRAN,
n/k/a MELISSA CHRISTINE MARVEL,
       Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Iowa County, Nancy A.

Baumgartner, Judge.



      A father challenges the grant of physical care of their two daughters to his

former wife. AFFIRMED AND REMANDED.



      John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for

appellant.

      Matthew J. Adam and Rae M. Kinkead of Simmons Perrine Moyer

Bergman, P.L.C., Coralville, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, P.J.

       In the decree dissolving the marriage of Josh and Melissa Cochran, the

district court granted physical care of their two daughters to Melissa, finding she

had “clearly been a much greater presence in the children’s lives than Josh” had

been during the girls’ early years. On appeal, Josh challenges only the physical

care arrangement. After reviewing the trial record, we find both parents would be

capable custodians, but we agree with the district court’s assessment that

approximation of the caregiving pattern during the marriage tips the balance

toward placing physical care with Melissa.

I.     Background Facts and Proceedings

       Josh and Melissa were married in August 2004. They have two daughters

together; the girls were nine and seven years old at the time of trial. Josh and

Melissa originally met and lived in Arizona. Melissa was a native of Gilbert,

Arizona, where she started a modeling company.         Josh worked in beverage

distribution.

       In the spring of 2006, Josh and Melissa moved to Iowa to raise their

family. Josh was an Iowa native; he grew up in Oxford and has many relatives in

that area. Josh and Melissa built a house in Williamsburg. The couple started a

commercial lawn and cattle care business. Melissa did the bulk of the mowing.

Melissa also worked for the University of Iowa from 2010 until 2012.          Josh

worked for an asphalt paving company.         He worked long hours during the

company’s busiest season—April through November. During the offseason, he

received unemployment and helped with the lawn and cattle business.
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       In early 2013, Josh and Melissa started considering a return to Arizona.

They placed their Williamsburg house on the market and made trips to the

Phoenix area to scout for a new home. Struggling to sell their Williamsburg

house, the family placed items in storage. In July 2013, Melissa and the children

moved in with Melissa’s mother in Arizona; Melissa got a job at Arizona State

University as an administrative assistant.      Josh accompanied the family to

Arizona and stayed until after the children’s first day of school to help the family

get settled. The couple made an offer on a house in Arizona, contingent on the

sale of their Iowa property.

       Josh then returned to Iowa to finish the paving season, but expressed his

intent to return to Arizona in November. During their fall break from school,

Melissa brought the girls to Iowa to visit Josh and to check on the sale of the

Williamsburg house. During this visit, Josh and Melissa acknowledged problems

in the marriage but agreed to work through them. Melissa’s work required her to

return to Arizona, but the couple agreed the children would stay with Josh until

Christmas.1

       Without prior notice to Melissa, Josh filed a petition to dissolve their

marriage on November 1, 2013. He also filed a temporary injunction to prevent

Melissa from moving the children to Arizona. Josh failed to inform the Iowa

district court that the girls had been living in Arizona since July and were enrolled

in school there.   In a February 12, 2014, ruling on Melissa’s application for

temporary orders, the court described Josh’s unilateral actions as “blindsiding”


1
  Josh and Melissa agreed the children would attend school in Williamsburg while they
remained in Iowa.
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Melissa. The court granted Melissa temporary physical care and the children

returned to Arizona. In the temporary order, the court granted Josh visitation

every other weekend from the end of the school day on Friday until 6:00 p.m. on

Sunday, as well as six weeks of summer visitation, the children’s fall break, and

half of the children’s winter break.2

       The court held a contested custody hearing over three days in September

2014. On October 31, 2014, the district court issued a decree dissolving the

marriage. The decree granted Josh and Melissa joint legal custody and granted

Melissa physical care with liberal visitation for Josh. Josh now appeals.

II.    Standard of Review

       We review dissolution of marriage cases do novo.             In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Although we decide the issues

raised on appeal anew, we give weight to the factual findings, especially in

regard to witness credibility.    Iowa R. App. P. 6.904(3)(g); In re Marriage of

Witten, 672 N.W.2d 768, 773 (Iowa 2003). Courts must resolve physical care

issues based upon what is best for the children, not upon perceived fairness to

the spouses. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). “The

objective of a physical care determination is to place the children in the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” Id.




2
  Josh was responsible for sixty percent of his costs and Melissa was responsible for the
remaining forty percent. The court noted Josh did not miss a weekend and the children
spent more than six weeks with him over the summer.
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III.   Physical Care

       Josh argues the district court erred in granting physical care of their

daughters to Melissa and asks us to place them in his physical care. His primary

focus is on Melissa’s hostility toward him and the availability of his network of

extended family members in Iowa to participate in the children’s lives.

       We find both Josh and Melissa to be capable parents. They both have

shown a strong commitment to the children, despite showing disdain for one

another while the divorce was pending. After reviewing the trial record anew, we

conclude the district court appropriately balanced the critical factors in deciding to

place physical care with Melissa

       In trying to determine the best interest of the children, we consider

numerous factors, including but not limited to the suitability of parents, the

psychological and emotional needs and development of the children, the quality

of parental communication, the previous pattern of caregiving by the parents, and

each parent’s support of the other. See Hansen, 733 N.W.2d at 696; see also

Iowa Code § 598.41(3) (2013).

       The district court found Melissa to be the children’s primary caregiver

throughout the marriage, with the exception of the fall of 2013 when they stayed

in Iowa with Josh. Josh does not argue to the contrary. Instead, he claims

Melissa’s hostile behavior entitles him to an award of physical care.3



3
  Josh compares his situation to In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa
Ct. App. 1996) (finding mother’s “contentious disposition and hostile temperament
incompatible” with an award of physical care). We do not believe Melissa’s conduct
toward the children can be aptly compared to the mother in Kunkel. Moreover, it is
important to remember in custody determinations, “[p]rior cases have little precedential
                                            6



       It is true that, at points during the divorce case, Melissa has acted poorly.

Her texts and telephone calls to Josh have been demeaning and profanity laced.

In December 2013, Melissa appeared unannounced at the home of Josh’s

parents, demanding to take the children back to Arizona with her. The Johnson

County Sheriff’s Department had to be called to defuse the situation. When she

regained care of the children, she was ungenerous with visitation time. Under

the temporary decree, Josh flew to Arizona every other weekend to visit the

children. His flight always left Monday morning, but on all but one occasion,

Melissa refused to allow him to spend time with the children on Sunday evening

after the visitation was officially over.

       But neither has Josh covered himself with glory during the separation and

divorce case. Josh filed for divorce without any forewarning to Melissa, when

she believed he was planning to rejoin her in Arizona.         And in doing so he

engaged in a scheme to remove the children from Melissa’s care. His secretive

behavior signals he would not be supportive of the children’s relationship with

Melissa nor would he communicate effectively with her regarding joint parenting

decisions.    See Iowa Code § 598.41 (providing that when deciding custody

issues, court is to consider “[w]hether each parent can support the other parent's

relationship with the child”). Josh also showed a lack of cooperation when he

transported the girls to Arizona following entry of the temporary decree and failed




value, and we must base our decision primarily on the particular circumstances of the
parties presently before us.” In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.
App. 2004).
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to cover their belongings, allowing them to become soaked and filthy from the

drive.

         While neither parent has been a saint, the hostility between them is not

beyond the “usual acrimony that accompanies a divorce.” See In re Marriage of

Gensley, 777 N.W.2d 705, 715 (Iowa Ct. App. 2009).            We do not find that

Melissa’s outlook or conduct since the initial separation disqualifies her from

providing quality physical care. As the district court emphasized, Melissa has

been the children’s primary caregiver for most of their lives. Approximating that

pattern of care will enhance the children’s stability after their parents’ divorce.

See Hansen, 733 N.W.2d at 696–97.

         Josh also points to his large extended family in Iowa as a consideration in

deciding physical care.      The district court addressed this claim: “I am not

unmindful of the fact that Josh has a loving and extended family. However, I do

not find that Josh’s extended family or Melissa’s lack of extended family in

Phoenix should be the deciding factor in deciding primary physical care.” We

agree with the district court’s assessment.        While strong family support is

undeniably important, it is not dispositive of our analysis.     We are confident

Melissa can fulfill the role of the physical-care parent and the children will have

the opportunity to interact with Josh’s extended family members during visitation

times.
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IV.   Appellate Attorney Fees

      Melissa asks for appellate attorney fees. Appellate attorney fees are not a

right, but instead rest in our discretion. In re Marriage of Okland, 699 N.W.2d

260, 270 (Iowa 2005). “Specifically, 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 trial court’s decision on appeal.” In re

Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Because Melissa was

obligated to defend the physical care arrangement on appeal and, based on their

relative annual incomes, has less ability to pay than does Josh, we opt to award

her attorney fees. But Melissa has not provided an affidavit of attorney fees with

documentation to support her request. Therefore, we remand to the district court

to enter judgment against Josh in a reasonable amount. See Markey v. Carney,

705 N.W.2d 13, 26 (Iowa 2005) (allowing amount of appellate attorney fees to be

determined in the first instance in the district court because of the necessity for

making a record).

      We order Josh to pay the costs of the appeal.

      AFFIRMED AND REMANDED.
