                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-2044
                                 Filed July 5, 2018


IN RE THE MARRIAGE OF MASATOMO NOBORIKAWA
AND DEIDRA DANIELLE MILLER NOBORIKAWA

Upon the Petition of
MASATOMO NOBORIKAWA,
      Petitioner-Appellee,

And Concerning
DEIDRA DANIELLE MILLER NOBORIKAWA, n/k/a DEIDRA DANIELLE
MILLER,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.



       Deidra Miller appeals the decree dissolving her marriage to Masatomo

Noborikawa. AFFIRMED.




       John R. Walker, Jr. of Beecher, Field, Walker, Morris, Hoffman & Johnson,

P.C., Waterloo, for appellant.

       Heather A. Prendergast of Roberts, Stevens & Prendergast, PLLC,

Waterloo, for appellee.



       Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Deidra Miller and Masatomo (Masa) Noborikawa married in 2002. They

have four children, who now range in age from five to eleven years old. Masa filed

a petition seeking to dissolve the marriage in July 2016, and in December 2017,

the district court entered a decree dissolving the marriage.     Deidra appealed.

       Because the district court hears dissolution-of-marriage proceedings in

equity, our review is de novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106

(Iowa 2016); see also Iowa Code § 598.3 (2016); Iowa R. App. P. 6.907. Although

we examine the entire record and adjudicate the issues anew, we give weight to

the district court’s factual findings, especially with respect to the credibility of the

witnesses. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013);

see also Iowa R. App. P. 6.904(3)(g). This is because the district court, in making

its credibility assessment, has the distinct advantage of listening and observing

each witness’s demeanor firsthand, while we must rely on a cold transcript. See

In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989); In re Marriage of

Vrban, 359 N.W.2d 420, 423 (Iowa 1984).

       I. Child Custody.

       Deidra first challenges the child custody provisions of the decree. Although

Deidra requested joint physical care of the children, the court found such an

arrangement would not be in the children’s best interests. The court instead

granted physical care of the children to Masa. On appeal, Deidra again argues a

joint-physical-care arrangement is best for the children.

       Iowa Code section 598.41(1)(a) (2016) states:
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       The court, insofar as is reasonable and in the best interest of the
       child, shall order the custody award, including liberal visitation rights
       where appropriate, which will assure the child the opportunity for the
       maximum continuing physical and emotional contact with both
       parents after the parents have separated or dissolved the marriage,
       and which will encourage parents to share the rights and
       responsibilities of raising the child unless direct physical harm or
       significant emotional harm to the child, other children, or a parent is
       likely to result from such contact with one parent.

The court may grant joint physical care if the parties share joint legal custody and

at least one party requests it. See Iowa Code § 598.41(5)(a). If the request is

denied, the court must state specific findings of fact and conclusions of law as to

why joint physical care is not in the child’s best interests. See id. In determining

whether joint physical care is appropriate, we consider consider “(1) stability,

continuity of caregiving, and approximation; (2) ‘the ability of the spouses to

communicate and show mutual respect’; (3) ‘the degree of conflict between

parents’; and (4) ‘the degree to which the parents are in general agreement about

their approach to daily matters.’” In re Marriage of Hansen, 886 N.W.2d 868, 874

(Iowa Ct. App. 2016) (quoting In re Marriage of Hansen, 733 N.W.2d 683, 696-99

(2007)).

       In the decree, the district court determined a joint-physical-care

arrangement was not in the children’s best interests, citing the parties’ inability to

communicate effectively, the degree of conflict between them, their inability to

agree on child-rearing practices, and the logistics of their current living situations.

Deidra challenges these findings, claiming the district court exaggerated the level

of conflict between the parties and claiming they have only “isolated

disagreements” concerning child-rearing.        The evidence indicates otherwise.

Despite her claims that the parties are able to co-parent, the evidence shows
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Deidra has undermined Masa’s role as a parent, made unilateral decisions about

the children, attempted to involve the children in marital conflicts, and been

disrespectful to Masa in the children’s presence.

       Deidra argues the principle of approximation weighs strongly against

granting Masa physical care of the children, claiming she was the children’s

primary caregiver until February 2017. Again, the record belies her claim. Rather,

the record shows that historically, both parents had cared for the children. From

2013 through 2015, Masa cared for the children alone for two nights each week

while Deidra taught a community college class. In 2016, Masa cared for the

children for two-and-a-half months while Deidra was in India, and he has been their

primary caretaker since February 2017. Although the extent to which both parents

acted as caretakers to the children may support a joint-physical-care arrangement,

this factor is mitigated by their inability to communicate and the degree of conflict

between them.      See Hansen, 733 N.W.2d at 697 (noting there may be

circumstances that outweigh considerations of stability, continuity, and

approximation in determining whether joint physical care is in the children’s best

interests)

       Finally, Deidra argues that granting Masa physical care presents “a danger

that he will seek to limit [her] time with the children.” We find no evidence to

support such a claim and note that Masa is bound to the visitation schedule set

forth in the dissolution decree. Rather than making a custody determination based

on unfounded speculation, we note that any evidence concerning a custodial

parent’s interference in the noncustodial parent’s relationship with the children

would be more appropriately addressed in a modification action.           See In re
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Marriage of Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (“If visitation rights

of the noncustodial parent are jeopardized by the conduct of the custodial parent,

such acts could provide an adequate ground for a change of custody.”); In re

Marriage of Gratias, 406 N.W.2d 815, 817-18 (Iowa Ct. App. 1987) (noting a

custodial parent’s future interference with the development of normal, healthy

relationships between the children and noncustodial parent “may very well serve

as grounds for modification of custody”).

       II. Property Division.

       We next address Deidra’s challenge to the district court’s division of

property. In determining how the parties’ property should be distributed, the trial

court has considerable latitude and should only be reversed if “there has been a

failure to do equity.” See In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa

2005). “The determining factor is what is fair and equitable in each circumstance.”

In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App. 2009).

       Deidra first argues the court erred in treating funds provided by Masa’s

father as marital debts. In 2013, his father provided them with $60,655.08 for a

down payment on a home.          In 2016, he provided them with an additional

$10,364.00 to replace the roof on the home. Masa claims these payments were

loans that requirement repayment. Deidra claims the payments were gifts and

repayment was never discussed. It was the prerogative of the district court, as

factfinder, to determine which evidence it believed. See Claus v. Whyle, 526

N.W.2d 519, 524 (Iowa 1994). The court found Masa to be more credible than

Deidra. We defer to its finding in light of its superior position to resolve questions

of witness credibility. See Udelhofen, 444 N.W.2d at 474.
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       Deidra also argues she should receive credit for half of the parties’ 2016

income tax refund. Masa kept the entirety of the approximately $8000 refund,

which he testified he used for living expenses. The district court found it was

appropriate for Masa to keep the tax refund to support the children and maintain

the marital home in light of the fact that Deidra had not paid any expenses for the

home or child support in the ten months leading up to the dissolution. The district

court’s decision was equitable under the circumstances, and we do not disturb it

on appeal.

       Finally, Deidra argues she should receive credit for half of the amount that

Masa spent on attorney fees during the dissolution proceedings, which amounted

to $19,050.00, arguing it was dissipation of marital assets. Masa testified that his

family provided him with the funds to pay his attorney fees. We decline to credit

Deidra for one half of the funds used to pay Masa’s attorney fees.

       III. Appellate Attorney Fees.

       Masa requests an award of his appellate attorney fees. Whether to make

such an award is within our discretion. See Spiker v. Spiker, 708 N.W.2d 347, 360

(Iowa 2006). It depends on three factors: (1) the needs of the party making the

request, (2) the ability of the other party to pay, and (3) whether the party making

the request was obligated to defend the trial court's decision on appeal. See id.

Although Masa successfully defended the trial court’s decision on appeal, in

considering his needs against Deidra’s ability to pay, we decline to award appellate

attorney fees.

       AFFIRMED.
