                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1351
                               Filed May 29, 2014


IN RE THE MARRIAGE OF RYAN T. GRAY
AND ROBIN R. GRAY

Upon the Petition of
RYAN T. GRAY,
      Petitioner-Appellee,

And Concerning
ROBIN R. GRAY,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.



      A wife appeals the physical care provision of the district court’s dissolution

decree. Both parties seek appellate attorney fees. AFFIRMED AS MODIFIED

AND REMANDED.




      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

      Molly Vakulskas Joly of Vakulskas Law Firm, P.C., Sioux City, for

appellee.



      Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
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DANILSON, C.J.

       Robin Gray appeals the physical care determination, the award of the

child dependency exemption, and the attorney fee provisions of the district

court’s dissolution decree. Robin maintains the district court was wrong to award

physical care of the parties’ minor child (LEG) to Ryan Gray and to award Ryan

the right to claim LEG as a dependent on his taxes each year.             She also

maintains the district court abused its discretion by not awarding her attorney

fees. Both Robin and Ryan request appellate attorney fees. Because we believe

the concepts of continuity, stability, and approximation favor placing physical

care with Robin, we modify the district court’s award of physical care to award

physical care to Robin. We also modify the district court’s denial of trial attorney

fees and the award of the tax exemption. We award Robin appellate attorney

fees. Finally, we remand to the district court to fix child support and Ryan’s

visitation rights.

I. Background Facts and Proceedings.

       We accept the following facts as recited by the district court in the

dissolution decree, filed August 1, 2013.

              The parties were married [in March 2007] and separated on
       November 15, 2012.
              A temporary hearing was held on February 13, 2013 when
       the parties were granted joint custody. Physical care of the child
       was placed with Robin, and Ryan was ordered to pay child support
       of $747 per month beginning February 1, 2013. Ryan was granted
       and has exercised visitation every other Thursday through Monday
       morning and one night of visitation on the off week.
              Ryan will be 38 years of age this year and is in good health.
       Ryan is employed as a sales engineer/network design and
       maintenance worker earning a salary of $90,000 per year. Ryan
       did receive a bonus of $3,500 for his 2012 work, but none has been
       received in 2013. Ryan has been in his current employment since
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May of 2012, and prior to that he had been employed with the same
employer and doing similar tasks to what he is now for 16 years.
Ryan works out of his home and travels periodically to jobsites that
are typically within a 150 to 200 mile radius from Sioux City.
Ryan’s work schedule is flexible and no travel is an option. Ryan
provides health insurance coverage for Robin, himself, their child,
LEG, and each of their other children (2) at a cost of $266.50 per
month. Single coverage is $5 per month
        Robin will be 43 years of age this year and is in good health.
Robin has had a weight loss procedure performed, but no
complications were mentioned. Robin works as a substitute
teacher in the Sergeant Bluff-Luton Community School District.
The availability of work varies. Robin receives $100 per day or $50
for a half day of substitute teaching. Robin is seeking her master’s
degree in (1) curriculum and (2) guidance and counseling, which
she hopes to receive in May of 2015. Robin has a college degree
with majors in (1) human resource management and (2) business
administration.
        As a result of this marriage, one child was born; namely,
LEG, born in 2006, and he just completed kindergarten in the
Sergeant Bluff-Luton Community School District. LEG is in good
health. LEG did participate in soccer.
        Neither party asked the court to consider shared or joint
physical care.
        Ryan and Robin each have a child from a previous marriage.
Ryan’s son, GG, is 16 years of age and has resided with his father
since he was [3] years of age. Ryan receives $203 per month in
child support in Woodbury case CDCD118009 and is entitled to the
tax exemption each year. The mother of GG testified to Ryan’s
parenting and their ability to communicate and co-parent. Robin’s
son, CM, will be 11 years old this year. Robin receives $624 per
month in child support in Woodbury case CDCD119432 and is
entitled to the tax exemption each year. CM’s father is not in the
area and is not actively involved. CM’s paternal grandmother
testified to Robin’s parenting and their ability to communicate and
arrange for visitation.
        The parties own a home which they have agreed will be
listed for sale and sold. Robin owed CM’s father a judgment lien of
$20,000, which he subordinated to enable Ryan and Robin to buy
this residence. They have paid $5,000 per year and owe a balance
of $5,000. Ryan also cashed in his 401(k) account from his prior
employer in May 2012 and netted approximately $16,000 and used
the funds for purchasing two computers, household furnishings,
paying living expenses and marital debt. Ryan has struggled to pay
the mortgage indebtedness and stay current on the other
obligations ordered in the temporary order. Ryan was only able to
make partial payments in March 2013 and the mortgage is currently
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      three months delinquent. Robin has not made any mortgage
      payments. Robin testified the equity should be split 70% Ryan and
      30% to Robin.
             ....
             Robin is asking for Ryan to continue health insurance
      coverage on her until the end of 2015 or if she should obtain full-
      time employment, whichever occurs first. The court did not hear
      any evidence on Ryan’s ability to continue coverage for Robin and
      her son, CM, after a decree of divorce is entered, nor were any
      COBRA costs presented. Robin is requesting $800 per month in
      alimony to offset her living expenses. Since fulltime employment is
      not possible while she is in school, Robin plans to continue as a
      substitute teacher until she is done with her master’s degree and
      secures employment.
             Both Ryan and Robin have been involved in other
      relationships while this matter is pending. Ryan acknowledges his
      relationship with Samantha Harkness is ongoing and it is his intent,
      when his lease expires, to move in with her and her two girls, ages
      10 and 6. Samantha has had contact with LEG and gets along with
      him and Ryan’s family well. Robin allowed an individual and his
      two children to move in with her and her two boys for a month or
      so.
             Ryan believes he should be awarded physical care based
      upon his past 16 year success co-parenting [GG], his job, and his
      nearby family. Robin cites her stability and the past time spent as a
      stay-at-home mom. Both indicate the other is a good parent, but
      primarily cite communication difficulties with the other as the reason
      why they should be awarded physical care. Ryan offers as
      evidence his text communications and log of contact with Robin.

(Internal references to record and exhibits omitted.) We will expand upon the

facts as is necessary to resolve the issues.

      The district court awarded the parties joint legal custody of LEG and,

noting neither parent requested shared physical care, awarded Ryan physical

care of LEG.      In doing so, the court expressed difficulty in making the

determination because both Ryan and Robin are loving and caring parents.

Although Ryan stipulated before trial and affirmed during testimony that the

parties should receive the dependent tax exemption in alternate years, the court
                                         5


awarded Ryan the exemption each year. The district court also denied Robin’s

request for attorney fees. Robin appeals.

II. Standard of Review.

      We review equity proceedings de novo.         In re Marriage of Olson, 705

N.W.2d 312, 313 (Iowa 2005). We give weight to the district court’s findings,

especially regarding the credibility of witnesses, but are not bound by them. Iowa

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

depend on the facts of the particular case.” In re Marriage of White, 537 N.W.2d

744, 746 (Iowa 1995).

      Trial courts have considerable discretion in awarding attorney fees. In re

Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). The party seeking to

overturn the court’s decision must prove an abuse of discretion. Id.

III. Discussion.

      A. Physical Care.

      Robin maintains it is in LEG’s best interest that she be awarded physical

care. She argues she has historically been the child’s primary caregiver and

maintains several of the district court’s findings of fact were not supported by the

evidence.

      “Our first and foremost consideration in determining custody is the best

interest of the child involved.” In re Marriage of Weidner, 338 N.W.2d 351, 356

(Iowa 1983); see Iowa Code § 598.41(3) (2011) (listing factors relevant to

determining what custody arrangement is in the child’s best interests). We use

the factors enumerated in Iowa Code section 598.41(3) and In re Marriage of

Winter, 223 N.W.2d 165, 166–67 (Iowa 1974), to determine which of the two
                                        6


parents is most likely to provide an environment that brings the child to health,

both physically and mentally, and to social maturity.     See In re Marriage of

Hansen, 733 N.W.2d 683, 695–96 (Iowa 2007). In making our determination,

gender is irrelevant, and neither parent has a “greater burden than the other in

attempting to gain custody.” In re Marriage of Bowen, 219 N.W.2d 683, 689

(Iowa 1974).

       We believe it is in LEG’s best interest to award Robin physical care.

Stability and continuity of caregiving are important considerations when deciding

physical care. See Hansen, 733 N.W.2d at 696. “Stability and continuity factors

tend to favor a spouse who, prior to divorce, was primarily responsible for

physical care.” Id. at 697–98. “The successful caregiving by one spouse in the

past is a strong predictor that future care of the children will be of the same

quality.” Id. at 697.

       Ryan and Robin both testified that at the parties’ agreement, Robin quit

her job to stay home and take care of LEG.          She was the parent mainly

responsible for caring for LEG, including baths, making meals, and taking him to

appointments.     Although Ryan was able to work out of the home and was

present, he was often busy, as he worked fifty-five to sixty hours per week.

Robin has continued to be the primary caregiver while she works part-time as a

substitute teacher and pursues her master’s degree in curriculum and guidance

counseling. We acknowledge the district court had the opportunity to hear the

witnesses and observe their demeanor, but we do not believe the district court

gave Robin sufficient credit for being LEG’s primary caregiver.
                                           7


       Robin has also provided more stability for LEG since the parties

separated. When in Robin’s care, LEG has been able to continue to sleep in the

marital home and maintain his schedule. In contrast, while in Ryan’s care, even

school nights, LEG has stayed either at Ryan’s apartment, the home of Ryan’s

new girlfriend, or the home of his paternal grandparents.

       LEG’s relationship with Robin’s son, CM, also favors awarding Robin

physical care.    We recognize that awarding either parent physical care will

separate LEG from one of his half-siblings. See In re Marriage of Orte, 389

N.W.2d 373, 374 (Iowa 1986) (“We have expressed a strong interest in keeping

children of broken homes together. . . We believe these general principles should

govern awards of physical care in cases of half siblings as well as others.”). Both

parties testified about the close relationship between LEG and CM. The two

boys are within four years of age and share similar interests. Although LEG is

also close with Ryan’s son, GG, there is a greater difference in age between the

two siblings, and GG is expected to leave home for college in about two years.

       We also consider the parties’ work schedules and their impact on the

parties’ abilities to care for LEG fulltime. At the dissolution trial, Ryan testified he

had to travel overnight for work thirteen or fourteen times between the parties’

separation in November 2012 and the hearing on May 29, 2013. There were

other instances when he traveled approximately 200 miles for work, although he

was able to make those day trips.         If LEG became ill at school or had an

emergency, Ryan would be unavailable on those travel days, and he would have
                                           8


to rely on someone else for LEG’s care.1            In contrast, Robin’s work as a

substitute teacher does not require her to travel and allows her to keep the same

schedule as LEG.

       We believe the district court placed too much focus on several small

incidents in making its physical care determination. In the dissolution decree, the

court stated:

       The court in making this determination looked at Robin’s refusal to
       allow Ryan to remove his oldest child’s personal belongings and
       furniture from the marital home while this matter was pending. The
       court heard no logical explanation for this decision.         Robin
       demanded a drug test, which Ryan took (without court involvement)
       and passed. When Robin determined Ryan was out of town, she
       demanded the child be returned to her, even traveling to Ryan’s
       girlfriend’s home where the child, girlfriend, and paternal
       grandparents were at. This necessitated a number of phone calls
       and was anxiety inducing. Robin signed LEG up for soccer and
       then expected Ryan to purchase the items needed for soccer,
       which he did, but then she did not take LEG to any of the soccer
       games. The soccer games that LEG made it to were during Ryan’s
       time. Robin said she was at the soccer games of her other son, but
       Ryan testified he did not see her at the same soccer field nor did
       she offer any explanation on why she did not allow Ryan to take
       their son to these other soccer games. The court believes these
       factors tip the scale in Ryan’s favor in determining LEG’s long-term
       best interests will be served by being in his father’s care.

       After Ryan moved out of the marital home and filed for divorce, he re-

entered the property several times without Robin’s knowledge or consent to

remove items.      Only afterward, Robin refused to allow Ryan entry into the

residence. Ryan filed a motion on April 3, 2013, requesting the court to authorize

his entry into the home to retrieve possessions and for a realtor to inspect the

premises. Apparently, the parties resolved the issue regarding Ryan retrieving


1
 At trial, Ryan testified his parents live in the area and have been able to help provide
care for LEG in the past when Ryan had to travel for work.
                                         9


his possessions as the court’s order, filed April 23, 2013, only addressed and

granted a date for Ryan and the realtor to enter the premises. At the trial on

May 29, 2013, both parties confirmed Ryan had been allowed to enter the home

following the court’s order, and they had stipulated to which items were GG’s so

they could be returned to him.

        Regarding the drug test, Robin testified she found rolling papers and

synthetic potpourri, which she learned can be smoked like marijuana, in the

marital residence. Following the discovery, she requested Ryan take a drug test.

Ryan complied and the test results showed he was not using drugs.           Robin

agreed to pay for the test.      The district court was not required to have any

involvement in the incident, as Ryan took the test voluntarily and Robin agreed to

pay for it.

        We believe the district court placed too much focus on the incident

involving Robin attempting to pick up LEG when Ryan was out of town. Robin

mistakenly believed the temporary order gave her first right to have LEG in her

care if Ryan was not available to care for him. Because of this belief, Robin went

to Ryan’s girlfriend’s home to pick up LEG after learning Ryan was out of town.

She left when she learned her understanding of the temporary order was wrong.

At the hearing, Ryan claimed LEG was “terrified and confused and he didn’t

know why all the drama was going on.” If LEG was terrified, as Ryan testified,

his anxiety cannot be explained by Robin’s actions as she only sat in her vehicle

in the driveway and made no attempt to enter the home or take LEG.

        Finally, the court considered Ryan’s testimony that Robin signed LEG up

for soccer, but failed to attend any of LEG’s games.       Robin asked Ryan to
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contribute to the soccer registration fee but he did not respond. Two of LEG’s

games conflicted with the games of Robin’s son, CM, and she acknowledged

when such a conflict existed she did not attend LEG’s games because she knew

Ryan would be able to attend.         She also experienced some difficulties in

attending due to work responsibilities. Even assuming Ryan’s claim is true, we

do not believe it is enough to overcome or outweigh Robin’s role as the historical

primary caregiver of LEG.

       At the dissolution hearing, both parties testified the other was a good

parent, but cited difficulty communicating as a reason they should be awarded

physical care of LEG. In support of his contention, Ryan presented a log of texts

he had sent to Robin requesting to speak to LEG as well as her responses,

which showed Robin only allowed him to talk to LEG eleven percent of the time

he requested it.    We agree Robin could have been more receptive to his

requests, but Ryan sent an unreasonable number of text messages, and we

believe Robin did allow a reasonable number of calls. Between December 3,

2012, and May 13, 2013, Ryan sent 157 text messages requesting to speak with

LEG, notwithstanding some of the time Ryan provided LEG’s care.2 According to

his own log, on at least one day over the course of less than three hours, Ryan

sent ten text messages to Robin. Many of Robin’s responses gave reasonable

reasons for delaying LEG’s return calls to Ryan such as: we have company; we
2
 The temporary order entered by the district court during the pendency of proceedings
provided Ryan visitation with LEG:
       [E]very other Thursday from 4:00 p.m. until Monday morning when Ryan
       shall transport the child to school. If there is no school on the Monday
       that Ryan has visitation, Ryan shall have visitation until 6:00 p.m. that
       Monday evening. On the weeks that Ryan does not have the minor child
       for weekend visitation, Ryan shall have one night of visitation on
       Tuesday, Wednesday, or Thursday from 4:00 p.m. to 6:30 pm.
                                           11


are going to eat dinner; he is in bed; and he is on a bike ride. There does not

appear to be any dispute that Ryan was able to see or talk to LEG at least every

other day.

       As the district court recognized, both Robin and Ryan are good parents

who want the best for LEG. However, we believe the concepts of continuity,

stability, and approximation favor placing physical care with Robin. Thus, we

modify the district court decision awarding Ryan physical care and instead award

Robin physical care of LEG and remand for entry of an order fixing Ryan’s

visitation rights and his child support obligation. Iowa Code section 598.41(5)(b)

requires the parent awarded physical care to support the other caregiver’s

relationship with the child. We expect Robin to comply with this obligation and

foster LEG’s relationship with his father through liberal visitation and mutual

respect. We expect both parties to focus their attention on LEG’s best interests

and to co-parent him in their post-dissolution responsibilities.

       B. Right to Claim Dependent on Taxes.

       Robin also maintains the district court should have permitted each party to

claim LEG as a dependent for tax exemption purposes in alternate years, rather

than allowing Ryan to claim the exemption each year. She argues this was the

correct award, as Ryan stipulated to the alternate exemption before trial and

confirmed it again during his testimony.

       The “general rule” is that the parent given physical care of the child is

entitled to claim the child as a tax exemption. See In re Marriage of Okland, 699

N.W.2d 260, 269 (Iowa 2005); see also Iowa Ct. R. 9.6(5) (“The custodial parent

shall be assigned one additional exemption for each mutual child of the
                                          12


parents . . .”). “However, courts have the authority to award tax exemptions to

the noncustodial parents to achieve an equitable resolution of the economic

issues.” Id. (internal quotations omitted). A claim by a noncustodial parent for

the right to declare a child as a tax exemption may be appropriate when it would

“free up more money for the dependent’s care.” Id.

       Here, we modify the district court’s award of the tax exemption. Ryan

stipulated before trial and confirmed with his testimony at trial that the parties

should alternate the tax exemption. Robin agrees to alternate the exemption.

Thus, we award Ryan the dependency exemption for 2013, with the parties

alternating each year thereafter.

       C. Trial Attorney Fees.

       Robin requested the district court order Ryan to pay $10,000 of her

attorney fees.   The district court denied the request.       Whether attorney fees

should be awarded depends on the respective abilities of the parties to pay.

Guyer, 522 N.W.2d at 822. In addition, fees must be fair and reasonable. Id.

       Here, we modify the district court’s denial of attorney fees and award

Robin $5000. At the time Ryan filed for divorce, he was earning approximately

$90,000 annually while Robin was working as a part-time substitute teacher and

attending school to complete her master’s degree.              As the district court

recognized in the dissolution decree, Ryan was in the position to assume more of

the parties’ debts, “Ryan will be shouldering much of the financial obligations

from this relationship . . . [but] his affidavit of financial status filed prior to the

temporary hearing and acknowledged is still accurate at the final hearing shows

he has significant income exceeding his installment indebtedness.” Ryan has the
                                       13


ability to contribute to Robin’s attorney fees. The sum of $5000 shall be paid

within ninety days of the issuance of the precedendo.

      D. Appellate Attorney Fees.

      On appeal, both Robin and Ryan request an award of appellate attorney

fees. Appellate attorney fees are not a matter of right, but rather rest in the

appellate court’s discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa

2006). We consider the needs of the party seeking an award, the ability of the

other to pay, and the relative merits of the appeal. Id. Because Ryan earns

substantially more income than Robin, and because Robin was successful on

appeal, we award her $2500 in appellate attorney fees.

IV. Conclusion.

      Because     we   believe   the   concepts   of    continuity,   stability,   and

approximation favor placing physical care with Robin, we reverse the district

court’s award of physical care and award physical care of the minor child to

Robin. We also modify the district court’s decree to award Robin trial attorney

fees and modify the award of the tax exemption. We award Robin appellate

attorney fees. Finally, because the circumstances affecting child support and

visitation may have changed since the decree was entered, we remand those

issues to the district court for appropriate disposition in accordance with our

opinion. Costs of appeal are assessed to Ryan.

      AFFIRMED AS MODIFIED AND REMANDED.
