                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0768
                            Filed January 23, 2020


IN RE THE MARRIAGE OF LARA CHRISTINE LUETHJE
AND NATHAN JON LUETHJE

Upon the Petition of
LARA CHRISTINE LUETHJE,
      Petitioner-Appellant,

And Concerning
NATHAN JON LUETHJE,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Paul R. Huscher,

Judge.



      Wife appeals the district court’s custody determination in a dissolution

decree. AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.



      Leslie Babich and Amy K. Davis of Babich Goldman, P.C., Des Moines, for

appellant.

      Chira L. Corwin of Corwin Law Firm, Des Moines, for appellee.



      Considered by May, P.J., Greer, J., and Potterfield, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GREER, Judge.

       Lara Luethje appeals from the decree dissolving her marriage to Nathan

Luethje. The fighting issue is custody of the parties’ children. Lara contends the

shared custodial arrangement the district court crafted is unworkable and asks us

to award her physical care of the parties’ four children. Nathan maintains the

district court’s custodial care decision was correct. Both parties seek appellate

attorney fees.

       I. Background Facts and Proceedings.

       Lara and Nathan married in September 2005. The marriage was Lara’s first

and Nathan’s second. This union produced four children, born in 2007, 2013,

2015, and 2016. Nathan’s three children from his first marriage began living with

the couple in 2006. Over time, the marriage began to crumble, due in large part

to Nathan’s paranoia1 that Lara was having an affair.

       In September 2018, Lara filed a dissolution petition and requested that the

court award her physical care of the children. Nathan answered, also requesting

physical care. As the legal proceedings advanced, the parties resolved some

issues, including agreeing to joint legal custody of the children. They continued to

disagree on a physical care arrangement.

       The district court held a dissolution trial in April 2019, with the custody issue

as the primary focus. Allegations of marital infidelity and the parents’ behaviors

dominated the trial. Recognizing that Iowa abandoned the requirement of proving


1
  Although not diagnosed with a paranoid personality disorder, Nathan’s therapist
testified: “It [Nathan’s paranoia test score] was not above and beyond the normal
population of that paranoia scale, but it does suggest one who is experiencing
mistrust, resentful, past hurts that might lead to suspicious thinking, being vigilant.”
                                           3


fault in dissolution proceedings long ago, the district court disregarded the

allegations of infidelity. Yet Nathan’s paranoia and persistence on confirming an

affair remained central to each party’s case at trial.2

         In their testimony, Lara and Nathan emphasized their roles, and each

other’s failings, in the day-to-day care of the children. To prove Nathan’s lack of

parental capabilities, Lara submitted a calendar and memorandum detailing

Nathan’s inattention to the children’s needs, his consumption of alcohol, and their

overall inability to communicate about responsibilities and care of the children.

Nathan described his superior parenting abilities noting that the district court

awarded him physical care of his three children from a previous marriage in a

modification proceeding. Yet that ruling raised concerns about Nathan’s inability

to communicate with his first wife, even though custody ultimately transferred to

him.3

         After a three-day trial, the district court entered a ruling finding that the

parties should share physical care of the children, alternating parenting time as

follows:

        Lara shall have parenting time from Monday at 5:30 p.m. until
        Wednesday at 5:30 p.m. each week. Nathan shall have parenting time
        from Wednesday at 5:30 p.m. until Friday at 5:30 p.m. each week. The
        parties shall alternate every other weekend from Friday at 5:30 p.m.
        until Monday at 5:30 p.m. The party commencing their parenting time
        shall be responsible for transporting the children from school, daycare
        or the residence of the other parent unless otherwise agreed.


2 As the district court noted, “A substantial portion of the testimony at trial
concerned [Nathan’s] suspicions that [Lara] engaged in extra-marital affairs, and
his efforts to prove the truth of such suspicions through paternity testing, polygraph
and confrontation of suspected paramours.”
3 The modification related to the first wife’s inability to provide a safe home and

issues with her live-in boyfriend’s conduct.
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     The court ordered the parties to share holidays and summer vacation. Based

on the shared-care arrangement, the court ordered Nathan to pay $93.17 per

month in child support.     All expenses related to the children’s schooling and

extracurricular activities were to be split equally between the parties with no

expense made over $100 without prior approval by the other parent. The health

insurance obligation remained Lara’s as long as it was available through her

employer.

       Lara appeals. On appeal, each party requests appellate attorney fees.

       II. Standard of Review.

       Marriage dissolution proceedings are equitable in nature.          Iowa Code

§ 598.3 (2019). Thus, our review is de novo. See Iowa R. App. P. 6.907; Wilker

v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review the entire record and

decide anew the factual and legal issues preserved and presented for review. See

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

we give weight to the district court’s findings of fact, we are not bound by them.

See In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). Even so, we will

affirm the district court unless it failed to do substantial equity. See In re Marriage

of Mauer, 874 N.W.2d 103, 106 (Iowa 2016).

       III. Custody Determination.

       When physical care is at issue, our primary consideration is the best

interests of the children. See Iowa R. App. P. 6.904(3)(o). “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.” In re

Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).                  We review “a
                                         5


nonexclusive list of factors to be considered when determining whether a joint

physical care arrangement is in the best interests of the child.” In re Marriage of

Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007).

       The factors are (1) “approximation”—what has been the historical
       care giving arrangement for the child between the two parties; (2) the
       ability of the spouses to communicate and show mutual respect; (3)
       the degree of conflict between the parents; and (4) “the degree to
       which the parents are in general agreement about their approach to
       daily matters.”

Id. (quoting Hansen, 733 N.W.2d at 697–99); see also Hensch v. Mysak, 902

N.W.2d 822, 824–25 (Iowa Ct. App. 2017) (same).

       Here, after considering many factors, the district court determined that

shared physical care was in the children’s best interests, noting that “many good

reasons exist for shared physical care, and [the court did] not find any compelling

reason not to grant that request.” We review the shared physical care award in

light of the best-interests factors and the specific facts developed here. We respect

that “[t]he trial court has the advantage of hearing the evidence and observing the

witnesses.” In re Marriage of Brainard, 523 N.W.2d 611, 614 (Iowa Ct. App. 1994).

But we look to which parent will do better in raising the children into healthy,

content, and well-adjusted young adults. See In re Marriage of Rodgers, 470

N.W.2d 43, 44 (Iowa Ct. App. 1991).

       Good qualities exist in each parent.      Factors supporting an award of

physical care to Lara were her confirmed role as primary caretaker, the historical

caregiving arrangement, and the flexibility afforded with her job at her family’s

business. Lara described herself as the primary caregiver for not only the parties’

four children, but also for Nathan’s three older children when they resided in the
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home. She estimated she provided about eighty to ninety percent of the children’s

care.    For the benefit of all the children, Lara handled scheduling doctor

appointments, shopping for clothes, registering them for school, doing laundry,

bathing the younger children, shopping for groceries, preparing meals, and staying

home when a child was ill. Given all Lara did for the children, she emphasized her

close relationship with the children and their dependence on her when asking the

court to award her physical care. The district court supported Lara’s assertions

that she primarily cared for the children’s day-to-day needs.            “[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.” Hansen, 733 N.W.2d at 697.

        Moreover, for all of their lives, the four children resided in the family home,

which the district court awarded to Lara.4 The oldest child testified he preferred to

stay in the family home and live with his mother. Lara’s mother and aunt live next

door and provide a significant support system for Lara and the children. After Lara

and Nathan separated, Lara encouraged contact between her children and

stepchildren.

        While Lara’s schedule was flexible and allowed her to spend more time with

the children, Nathan had a set work schedule and sometimes worked up to seventy

hours per week. Yet until the parties separated, Nathan cared for the children after

his work from 3:30 until 6:00 or 7:00 p.m. on most of Lara’s workdays, per the

schedule the parents arranged. Contrary to Lara’s description of the caretaking


4 Lara’s deceased father’s trust owns this home, where Lara, Nathan, and their
family resided since 2006. In February 2019, Nathan bought a house within
walking distance to Lara’s. At the time of trial, he had been living in the home for
a few weeks.
                                         7


roles, Nathan’s self-described parenting role involved bathing the children, putting

them to bed, feeding them, playing video games with them, helping them with

homework, and, when he attended college for a year, being a stay-at-home dad.

       As might be expected, each parent recounted the personal failings of the

other as it related to their caretaking abilities. Lara referenced Nathan’s poor

memory and his paranoid and accusatory behavior, coupled with his excessive

nightly drinking of alcohol. She described Nathan as withdrawn, unavailable, and

depressed. Lara points to a history of Nathan’s failure to communicate with her

regarding day-to-day care of the children and to a letter he wrote confirming he

was “withdrawing” from the family. Nathan could not have overnight visitation of

the parties’ children after he moved out of the marital home because he had no

beds or car seats available for the children.

       Nathan accused Lara of limiting his time and contact with the children,

exaggerating his failures, and turning family members against him. Nathan’s

witnesses supported his solid parenting skills and deep relationship with the

children. Nathan contended that Lara and her family evicted him from the family

home to obtain a custodial advantage. Nathan’s counselor confirmed Nathan’s

feeling of withdrawal from the family, that he and Lara were poor communicators

with each other about co-parenting, and that Nathan’s emotions led him into

isolation at times. Another concern that arose at trial was Nathan’s drinking habit.

Nathan acknowledged an uptick in his drinking because of an inability to sleep and

the stress in his life. His counselor confirmed the heavy drinking as a poor coping

skill. Nathan claimed he quit drinking after concerns arose in mediation.
                                         8


       The most concerning issue, however, is Nathan’s unrelenting belief that

Lara is having an affair. The district court brushed off these allegations as an

attempt to prove fault and did not acknowledge any potential impact of that

behavior to the appropriateness of a shared physical care arrangement. We

assess his behavior differently.

       While this case does not rise to the level of physical abuse, Nathan’s

persistent accusations of Lara for affairs yet unproven cannot be ignored.

Beginning in 2011, and without evidence, Nathan accused Lara of having profiles

on sex solicitation websites and of having affairs with his brother, coworkers, and

family friends. Later that year, Nathan was driving in West Des Moines when he

encountered a male family friend on a walk. The man got into Nathan’s car, and

after some small talk Nathan began accusing the man of having an affair with Lara.

Nathan started driving the man to Indianola without his permission, apparently to

take him to a computer so Nathan could show him proof of the affair. The man

eventually convinced Nathan to take him home. Understandably, this incident

terrified the family friend. Nathan was also convinced he was not the biological

father of one of the parties’ children. After a paternity test showed a 99.999%

probability that he was the child’s father, he remained unconvinced and suggested

his brother could have fathered the child. He would sometimes come home from

trips early to try to catch her cheating. Lara also presented evidence at trial that

Nathan tracked her location, recorded video and audio of her, and in 2017 installed

a camera in the living room of their home, all without her knowledge.

       To quell Nathan’s assertions of infidelity, and at Nathan’s counselor’s

suggestion, Lara underwent a polygraph exam to prove no extramarital affair
                                          9


occurred. Even so, Nathan’s paranoia persisted. At one point Nathan threatened

suicide. After sixty-three counseling sessions over a two-year period, Nathan

remained steadfast in his beliefs about Lara’s infidelity even through trial.5

Nathan’s counselor testified he had “obsessive thought causing anxiety that leads

to compulsive strategies, psycho-obsessive compulsive features” related to his

continued conviction that Lara cheated on him. The counselor, however, related

the focus on infidelity to situational depression or anxiety that likely would subside

after the divorce.

       Crafting a joint custodial plan with the best interests of the children remains

the goal. Both parents love these children, and by all accounts, the children are

thriving. In addition, a primary consideration of the district court was preserving

the children’s bond with their stepsiblings. Iowa law presumes it is not in children's

best long-term interests to deprive them “of the benefit of constant association

with” their siblings. See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992).

The same principles govern awards of physical care when half-siblings are

involved. In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). But the

presumption may be overcome by compelling reasons. In re Marriage of Pundt,

547 N.W.2d 243, 245 (Iowa Ct. App. 1996). Nathan’s behaviors before the trial

work against a shared-care arrangement. See Hansen, 733 N.W.2d at 700–01

(concluding joint physical care was not in the best interests of the children, at least

in part, due to the parents’ “significant difficulties in communication” and the



5 The counselor noted that in the two years of therapy, Nathan’s “narrative never
really changed in that way. At times throughout the course of therapy he did begin
to become more open and flexible about some of his beliefs.”
                                          10

presence of “communication and respect issues”); In re Marriage of Toedter, 473

N.W.2d 233, 234 (Iowa Ct. App. 1991) (finding mother’s emotional problems

weighed against her while continuous grandparent contact supported custody to

the father).

       While noting difficulties in communications between these parties, the

district court believed the litigation to be the root cause. But this storyline began

long before the divorce proceedings and involved Nathan’s allegations against his

brother, suicidal threats, and possible kidnapping of another suspected paramour.

Requiring paternity tests and a polygraph and then threatening suicide in a letter

strike of instability. This history fails to establish behavior supporting co-parenting

skills, especially where Nathan has yet to make peace with these fears. Nathan’s

obsession with proving infidelity spilled over into his relationships with coworkers,

friends, and family. We find it difficult to reconcile this history with a coordinated

and conflict-free, shared-care plan. See Hansen, 733 N.W.2d at 698 (“A lack of

trust poses a significant impediment to effective co-parenting.”). Coupled with

Lara’s other allegations that Nathan failed to respond to her messages and

inadequately communicated about meals, activities, and other needs of the

children, we find stability weighs in favor of Lara.       Additionally, Lara set no

limitations on contact between her natural children and stepchildren,6 so contact

between all siblings can be often and substantial while she has physical care.

       We do not believe that shared physical care is in the best interests of the

children. We do, however, support a liberal visitation schedule for Nathan. Given


6Some evidence suggested Nathan prohibited his fifteen-year-old daughter from
speaking with or visiting Lara.
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the lingering issues between these parents and Nathan’s inability to move forward

by the time divorce was imminent, we reverse the award of the district court and

find that primary physical care should be with Lara. We remand the case for entry

of an order establishing this change, providing Nathan liberal visitation, and

recalculating the child support obligation to align with this opinion.

       IV. Attorney Fees.

       Each party requests appellate attorney fees. Appellate attorney fees are

not a matter of right but may be awarded in the court’s discretion. See, e.g., In re

Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).7 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 had to defend the decision of the trial court on appeal. Hensch v. Mysak,

902 N.W.2d 822, 827 (Iowa Ct. App. 2017). Having considered those factors, we

decline to award appellate attorney fees.

       V. Disposition.

       We modify the district court’s custody determination and remand the case

for entry of a modified decree reflecting Lara’s primary physical care, Nathan’s

visitation, and a recalculation of child support. We deny the parties’ requests for

appellate attorney fees.

       AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.




7  By agreement at trial, each party paid their own attorney fees and no attorney
filed fee affidavits.
