                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1643
                               Filed May 11, 2016


KELSIE STIENEKE,
     Plaintiff-Appellee,

vs.

BEAUX SARGENT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cherokee County, Patrick M. Carr,

Judge.



       Father appeals award of primary physical care of child to mother.

AFFIRMED.




       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       John P. Loughlin of Loughlin Law Firm, Cherokee, for appellee.



       Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

      Beaux Sargent and Kelsie Stieneke are the never-married parents of W.S.

In October 2013, Stieneke filed her petition to establish paternity, custody, and

support with respect to W.S. The district court awarded the parties joint legal

custody of W.S., awarded physical care to Stieneke, awarded Sargent regular

and liberal visitation, and ordered Sargent to pay $2000 in attorney fees.

Sargent appeals the physical care determination, requesting he be awarded

physical care of the child or, in the alternative, shared physical care. He also

requests remand for recalculation of child support in the event he prevails on his

claim regarding physical care of the child. Sargent also challenges the attorney

fee award. We affirm the judgment of the district court.

      Our review is de novo. See Iowa R. App P. 6.907; Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988). We review the entire record and decide anew the

factual and legal issues presented. See In re Marriage of Williams, 589 N.W.2d

759, 761 (Iowa Ct. App. 1998). Prior cases have little precedential value; the

court must make its determination based on the facts and circumstances of each

case. See In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995); In re

Marriage of Snowden, No. 14–1920, 2015 WL 4233449, at *1 (Iowa Ct. App. July

9, 2015) (“All happy families are alike; each unhappy family is unhappy in its own

way.” (quoting Leo Tolstoy, Anna Karenina 1 (1873))). “[W]e give considerable

weight to the sound judgment of the trial court who has had the benefit of hearing

and observing the parties firsthand.” Kleist, 538 N.W.2d at 278.

      The criteria used in making the physical care determination are the same

for married and unmarried parents. See Lambert, 418 N.W.2d at 42. Physical
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care is defined as “the right and responsibility to maintain a home for the minor

child and provide for the routine care of the child.” Iowa Code § 598.1(7) (2013).

In making the physical care determination, we look to the factors set forth in Iowa

Code section 598.41(3) and our case law. See In re Marriage of Hansen, 733

N.W.2d 683, 696–700 (Iowa 2007); In re Marriage of Winter, 223 N.W.2d 165,

166–67 (Iowa 1974). “Each factor, however, does not necessarily impact the

decision with equal force.” In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa

Ct. App. 1997). In considering the factors, our ultimate objective “is to place the

child in the environment most likely to bring him to healthy mental, physical, and

social maturity.” McKee v. Dicus, 785 N.W.2d 733, 737 (Iowa Ct. App. 2010).

The controlling consideration is the best interests of the child. See id. at 736.

Our court will “ultimately decide[ ] by determining under the whole record which

parent can minister more effectively to the long-range best interests of the

children.” Winter, 223 N.W.2d at 166 (citation omitted).

      The parties met at a county fair when Stieneke was fifteen years old and

Sargent was twenty-four.    At the time the parties met, Stieneke’s father was

incarcerated, and Stieneke’s mother was unable to care for Stieneke. Stieneke

lived with her grandmother, who was then or would later become Stieneke’s legal

guardian. The parties’ relationship quickly became intimate. While there was

some opposition to the relationship, the opposition was ineffective. Stieneke and

Sargent moved in together before she graduated high school in January 2010.

She studied for a career as a nurse at a local community college. He worked in a

family trucking business.
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      The parties’ relationship was marked by allegations of infidelity and

domestic abuse. On one occasion in the summer of 2010, during an argument

about alleged infidelity on the part of Sargent, Sargent bit Stieneke on the cheek.

Later in the same summer, Stieneke accused Sargent of infidelity at a class

reunion. Sargent struck Stieneke in the mouth. He testified he did so because

she was holding a knife to her throat and threatening to kill herself and he

intended to distract her to get the knife out of her hand. She testified that there

was no knife and that Sargent had wrapped a telephone cord around her neck.

Photographs of her neck showed reddening and abrasions.

      Nonetheless, the parties continued on together for a short period of time.

W.S. was born in June 2011. Stieneke continued her education, becoming an

LPN in May 2011 and RN in May 2012. Sargent attended anger management

sessions. The parties separated in May 2012. From May to September 2012,

the child was in Stieneke’s primary care. The parties had a “family meeting”

around September 2012 intended to clear the air with their family members and

help them proceed as a family unit.          Sargent, at the meeting and in a

contemporaneous letter, admitted to most of the domestic abuse above-

described.   The parties were not able to proceed in their relationship and

separated for good. This action was filed in October 2013.

      Sargent requests physical care of the child or, in the alternative, joint care.

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

parents, stability and continuity of caregiving have traditionally been primary

factors.” Hansen, 733 N.W.2d at 696. The child was born in 2011 when the

parties were living together. During this time, Sargent was gone frequently for
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his job.   The parties implemented a shared care arrangement informally in

September 2012. Sargent argues the child spent more time with him in this

shared care arrangement because Stieneke frequently let the child spend more

time with Sargent rather than taking him to a day care.

      The continuity of caregiving in this case militates in favor of the parties

continuing their informal shared-care arrangement.           However, under the

circumstances, we conclude continuation of the arrangement is largely

impracticable. The parties live in rural Iowa some distance from each other and

in different school districts. The child is entering school and must have a primary

residence within one of the districts without requiring the child to spend a great

deal of time traveling. As the child continues to age, the distance from the school

district becomes more important with respect to the ability to participate in extra-

curricular activities and social activities with a regular peer group. See In re

Marriage of Hunt, 476 N.W.2d 99, 103 (Iowa Ct. App. 1991). We thus address

“which parent can minister more effectively to the long-range best interests of the

children.” Winter, 223 N.W.2d at 166.

      The parties contest which school district could provide the best

educational opportunity for W.S.     Sargent argues the River Valley district is

superior to the Cherokee district. In addition, both parties graduated from River

Valley. Both parties have family near the River Valley schools, which could come

into play in the event of emergency. W.S. would also know classmates in River

Valley due to existing family connections. While the educational future of the

child is important, the evidence regarding the quality of the schools is in

equipoise and thus of little weight. See In re Marriage of Hoffman, 867 N.W.2d
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26, 35 (Iowa 2015) (assigning little weight to this factor where “the difference, if

any, between the quality of the two schools is not material”).

       Sargent argues he will better encourage a relationship between W.S. and

both sides of the child’s extended family.       This is an appropriate factor to

consider in custody cases. See In re Marriage of Burkle, 525 N.W.2d 439, 442

(Iowa Ct. App. 1994).     Testimony supported the fact that W.S. has frequent

contact with both families.    Sargent maintains a relationship with Stieneke’s

mother, but Stieneke does not maintain a relationship with Sargent’s family.

Stieneke says she will encourage appropriate contact with extended family

members, but she has concerns with Sargent’s father using marijuana around

the child.   This is a legitimate concern.   In any event, there is no evidence

establishing Stieneke would not promote the relationship between W.S. and his

extended family. This factor is also in equipoise.

       Sargent next contends that his job is more flexible and could better

accommodate the child’s needs. Sargent is employed as a truck driver in a

family business. He can adjust his schedule as needed. Stieneke works three

twelve-hour shifts per week as a nurse. She also testified she could change her

schedule to accommodate the child’s needs. We conclude this factor does not

favor either party.

       The parties also raise several other factors, none of which favor either

party over the other in any material sense, and we need not consider them in full

herein.

       Like the district court, we place weight on the history of domestic violence

between the parties. See In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.
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App. 1997). Domestic abuse adversely reflects on the abusing partner’s ability to

be the primary caretaker of a child. See In re Marriage of Brainard, 523 N.W.2d

611, 615 (Iowa Ct. App. 1994). Domestic abuse is, in every respect, dramatically

opposed to a child’s best interest. In re Marriage of Barry, 588 N.W.2d 711, 713

(Iowa Ct. App. 1998). There are serious consequences for children who grow up

in a home plagued by abuse. Daniels, 568 N.W.2d at 55. Abuse, therefore,

reveals “a serious character flaw in the batterer, and an equally serious flaw in

parenting.” Id. A “finding by the court that a history of domestic abuse exists, as

specified in subsection 3, paragraph ‘j’, which is not rebutted, shall outweigh

consideration of any other factor specified in subsection 3 in the determination of

the awarding of custody under this subsection.” Iowa Code § 598.41(2)(c). In

interpreting what is sufficient to constitute a “history of domestic abuse,” the

supreme court has held a “history” is not necessarily established by a single

documented incident. See In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa

1997). Nor does more than one minor incident automatically establish a “history

of domestic abuse.”     Id.   Although evidence of domestic abuse creates a

rebuttable presumption against an award of joint custody, see In re Marriage of

Ford, 563 N.W.2d 629, 632 (Iowa 1997), it is for the court to weigh the evidence

of domestic abuse, its nature, severity, repetition, and to whom directed, not just

to be a counter of numbers. Forbes, 570 N.W.2d at 760.

      In this case, Stieneke testified to several incidents of domestic abuse.

Sargent argues Stieneke’s claims of violence are overstated and, in any event,

he has addressed any such issues. The court concluded it would have been

inclined to view the domestic violence as episodic and in the past but for
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Sargent’s repeated attempts, and his witnesses’ attempts, to minimize the abuse

and cast Stieneke as the bad actor. The minimization of the violence manifests a

disregard for the law Sargent first evinced by his decision to commence a

relationship with a high school student almost ten years his junior. See In re

Marriage of Worthington, 504 N.W.2d 147, 150 (Iowa Ct. App. 1993) (considering

party’s disregard for the law in determining custody). While our review is de

novo, we do give weight to the findings of the district court, particularly on issues

of credibility. See In re Marriage of Butterfield, 500 N.W.2d 95, 99 (Iowa Ct. App.

1993). Implicit in the district court’s award of primary physical care to Stieneke

was a finding she was the more credible party.           Our review supports that

conclusion.

         Sargent contends the district court abused its discretion in awarding

Stieneke attorney’s fees. This Court reviews an award of trial attorney fees for

abuse of discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa

2006).     A district court abuses its discretion when the court exercises its

discretion on grounds that are clearly untenable or to an extent clearly

unreasonable. See Bindel v. Larrington, 543 N.W.2d 912, 914 (Iowa Ct. App.

1995).

         An award of attorney fees is not a matter of right, but rather rests within

the discretion of the district court. In re Marriage of Hocker, 752 N.W.2d 447, 451

(Iowa Ct. App. 2008). An award of attorney fees is based upon the respective

abilities of the parties to pay the fees and whether the fees are fair and

reasonable. In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct. App.
                                          9


1997).     In the decree, the district court explained its reason for granting

Stieneke’s request for trial attorney fees:

         After considering the age of the parties, their earning capacity, and the
         Respondent’s net worth as compared with that of the Petitioner, the Court
         thinks that the Respondent should contribute to the Petitioner’s attorney
         fees in the sum of $2,000.00.

The district court considered several factors in awarding fees.      None of the

factors were inappropriate. We find no abuse of discretion.

         Stieneke requests an award of appellate attorney fees. Such a decision

rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa

Ct. App. 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. After considering the relevant factors,

we decline to award appellate attorney fees in this case.

         AFFIRMED.
