                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0952
                             Filed February 11, 2015

IN RE THE MARRIAGE OF STEPHANIA L. RICKELS
AND JASON LYNN RICKELS

Upon the Petition of
STEPHANIA L. RICKELS,
      Petitioner-Appellee,

And Concerning
JASON LYNN RICKELS,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Jones County, Sean W.

McPartland, Judge.



      Jason Rickels appeals the district court’s dissolution decree. AFFIRMED.



      Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellant.

      Ellen Ramsey-Kacena, Cedar Rapids, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, J.

       Jason Lynn Rickels appeals the district court’s dissolution decree granting

physical care of the child, A.R., to Stephania Rickels. Jason requests the decree

be modified to establish joint physical care, or in the alternative, he requests A.R.

be placed in his physical care.1 Jason and Stephania both ask for appellate

attorney fees.     We concur in the district court’s decision to grant Stephania

physical care.     As Jason has not prevailed on appeal, we award Stephania

appellate attorney fees of $2000.

I.     BACKGROUND FACTS AND PROCEEDINGS

       Stephania and Jason were married in 2004. The parties have one child,

A.R., who was ten years old at the time of trial. Although A.R. was born before

the marriage, the parties agree Jason is the father. During the marriage, the

parties resided at a house, owned by Jason prior to the marriage, located in

Scotch Grove.

       Stephania is employed as a special education teacher in the Western

Dubuque School District. She has an undergraduate degree in special education

and communications and is working on obtaining a master’s degree in special

education from Mount Mercy University. She has one other child, who recently

turned eighteen and is a senior in high school. Stephania has had physical care

of this child since her divorce from the father.




1
 In the event we decide to award Jason joint physical care or physical care, he asks for
an expanded visitation schedule, and for the tax dependency exemption to be alternated
each year. Since we affirm the district court, we decline to alter the established visitation
schedule or tax exemption arrangement.
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      Jason worked at Star Building Manufacturing, which later became NCI

Building Systems, where he made parts for buildings. Jason held this position

until 2008, when he became disabled. Jason was diagnosed with restrictive lung

disease leaving him unable to work fulltime. His income is largely derived from

social security disability payments.   Jason has two children from a previous

marriage. The children are currently in high school and reside primarily with their

mother, who has physical care.

      Stephania filed a petition to dissolve the marriage on November 15, 2012.

The parties separated shortly thereafter. Stephania and the two children moved

out of the marital home into a rented home in nearby Monticello. The district

court entered a temporary order concerning A.R. on January 7, 2013, which

awarded the parties temporary joint legal custody. Stephania received temporary

physical care and Jason’s visitation was set for every other weekend, though the

parties agreed to a broader visitation schedule.

      Following trial, the district court entered its dissolution decree on March,

31, 2013.   The decree gave Stephania and Jason joint legal custody, with

Stephania receiving physical care.     The decree also awarded Stephania the

yearly tax dependency exemption for A.R.

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). We have a duty to examine the

entire record and adjudicate anew the rights on the issues properly presented. In

re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Generally,
                                         4



we give considerable deference to the district court’s credibility determinations

because the court has a firsthand opportunity to hear the evidence and view the

witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

III.   ANALYSIS

       A. Joint Physical Care

       Jason claims joint physical care is in A.R.’s best interest. He points to the

historical caregiving role he played for A.R., and the parents’ ability to

communicate and agree without conflict.

       Iowa’s traditional and statutory child custody standard is “the best interest

of the child.” Iowa Code § 591.41(1)(a) (2011); In re Marriage of Hansen, 733

N.W.2d 683, 695 (Iowa 2007). This standard provides the necessary flexibility to

take the unique facts of each case into consideration. Hansen, 733 N.W.2d at

696. A nonexclusive list of factors used to determine the “best interest of the

child” is found in Iowa Code section 598.41(3).

       In considering whether to award joint physical care where there are
       two suitable parents, stability and continuity of caregiving have
       traditionally been primary factors. In re Marriage of Bevers, 326
       N.W.2d 896, 898 (Iowa 1982) (noting who during the marriage
       provided routine care and questioning desirability of the children’s
       nomadic existence for sake of parents); In re Marriage of Decker,
       666 N.W.2d 175, 178–80 (Iowa Ct. App. 2003) (past primary
       caregiving a factor given heavy weight in custody matters); In re
       Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998)
       (great emphasis placed on achieving emotional stability for
       children); [In re Marriage of] Roberts, 545 N.W.2d [340,] 343 [(Iowa
       Ct. App. 1996)] (though not controlling, due consideration to
       historical primary caregiver); [In re Marriage of] Coulter, 502
       N.W.2d [168,] 171 [(Iowa Ct. App. 1993)] (stability “cannot be
       overemphasized”). Stability and continuity factors tend to favor a
       spouse who, prior to divorce, was primarily responsible for physical
       care. See Iowa Code § 598.41(3)(d)
                                          5



Id.

       The district court found both Stephania and Jason to be suitable parents

for A.R. However, the court found joint physical care was not in A.R.’s best

interests.   Relying on the Hansen factors, the court declined to award joint

physical care and cited multiple reasons for its decision, including: Stephania’s

history of caring for A.R., the disruptive effect a shared custody arrangement may

have on A.R., the communication issues between the parents, and the degree of

conflict between the parents (derived from the parties’ communication issues).

       Upon our de novo review, we agree with the district court’s reasoning.

The record shows both Jason and Stephania provided significant care to A.R.,

and they are suitable parents for A.R.        However, we find certain events a

troubling indicator making a joint physical care arrangement not in the best

interests of A.R.    We find Jason has the tendency to assert his will over

Stephania, in lieu of communicating about issues and reaching amicable

compromise. For example, A.R. has issues with ADHD. Rather than place A.R.

on medication, Stephania preferred they look into other methods for controlling

his ADHD before resorting to medication.        Instead, Jason made a doctor’s

appointment to obtain ADHD drugs for A.R. without informing Stephania.

Stephania learned about the appointment and prescription for ADHD medication

only after the appointment. Additionally, Stephania has agreed to liberal and

frequent visitation for Jason, which includes an additional overnight during the

week and a two-week uninterrupted period during the summer. Ultimately, we

agree with the district court’s conclusion:
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       In short, based upon the factors discussed above guiding the
       Court’s determination of the appropriateness of joint physical care,
       and in the total setting presented in this case, the Court concludes
       that a joint physical care arrangement here is not in the best
       interest of A.R. Based upon the Court’s findings that, prior to the
       parties’ separation, Stephania was primarily responsible for
       physical care, the Court concludes that the interests of stability and
       continuity of care favor continued placement of primary care with
       Stephania.

       Upon our de novo review, we find Stephania is the more suitable parent

for promoting the relationship between A.R. and Jason than any alternative

arrangement. Pursuant to our findings above, we decline to disturb the district

court’s visitation schedule and tax dependency exemption award. We affirm the

district court’s order, and find the best interests of A.R. are served by a grant of

physical care to Stephania.

       B. Appellate Attorney Fees

       Both parties request attorney fees on appeal.        This court has broad

discretion in awarding appellate attorney fees. In re Marriage of Okland, 699

N.W.2d 260, 270 (Iowa 2005). An award of appellate attorney fees is based

upon the needs of the party seeking the award, the ability of the other party to

pay, and the relative merits of the appeal. In re Marriage of Berning, 745 N.W.2d

90, 94 (Iowa Ct. App. 2007).      Since Stephania has prevailed on appeal, we

award her $2000 in appellate attorney fees.

       AFFIRMED.
