                   IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0131
                              Filed December 10, 2014


IN RE THE MARRIAGE OF KYLE FRANK SMITH
AND LACY KAY SMITH

Upon the Petition of
KYLE FRANK SMITH,
      Petitioner-Appellant,

And Concerning
LACY KAY SMITH,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marion County, Gregory A. Hulse,

Judge.



      A father appeals the provisions of the parties’ dissolution decree granting

the mother physical care of the parties’ child and ordering him to pay spousal

support. AFFIRMED.



      Pamela A. Vandel, Des Moines, for appellant.

      James R. Cook, West Des Moines, for appellee.



      Considered by Mullins, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MAHAN, S.J.

        A father appeals the provisions of the parties’ dissolution decree granting

the mother physical care of the parties’ child and ordering him to pay spousal

support. We decline to modify the court’s determination that it was in the child’s

best interests to be placed in the mother’s physical care. We affirm the court’s

conclusion the mother was entitled to spousal support of $500 per month for

twenty-four months while she returned to school.        We determine the father

should be responsible to pay $1000 towards the mother’s appellate attorney

fees.

        I. Background Facts & Proceedings.

        Kyle and Lacy Smith were married in 2011. They have one child, who

was born in February 2012. After about fifteen months of marriage, the parties

separated in November 2012. Lacy moved out of the marital home, taking the

child with her. Kyle filed a petition for dissolution of marriage on December 20,

2012.

        After the parties separated, Lacy permitted Kyle only minimal access to

the child until an order on temporary matters was entered on January 25, 2013.

Pursuant to this temporary order, the court granted the parties joint legal custody

and placed the child in their joint physical care. Kyle was ordered to pay child

support of $413 per month. Kyle was awarded the marital home, his vehicle,

personal property, and certain debts.        Lacy was awarded her vehicle and

personal property. Kyle was ordered to pay Lacy a cash property settlement of

$3000. This order was approved as to form and content by the parties.
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       Although Kyle had agreed to joint physical care at the time of the order on

temporary matters, he later requested physical care of the child, stating he was

concerned about Lacy’s stability. He filed an application for the appointment of a

custody evaluator.      The court entered an order on April 4, 2013, appointing

Dr. Jerome Fialkov, a psychiatrist, to complete a custody evaluation. Dr. Fialkov

experienced unexpected complications from cataract surgery, which delayed his

report. He sent a letter to the court on July 25, 2013, stating he was going to

recommend Kyle have physical care of the child because he was the more stable

parent. A full report supporting his recommendation was filed later.

       The dissolution hearing commenced on October 24, 2013. Kyle was then

twenty-six years old. He has an associate’s degree in computer technology.

Kyle was employed as the manager of the Albia location of Smith Fertilizer

& Grain, a company owned by other members of his family.                  He has annual

income of $61,641. Kyle purchased a house in Knoxville prior to the parties’

marriage and continued to reside in the same home, where he lived with Kristin

Spaulding. Kristin has two children, one of whom is in her physical care.1 Kyle

did not have any health concerns.

       Lacy was twenty-two years old at the time of the dissolution hearing. She

had a high school degree and was studying cosmetology at the Iowa School of

Beauty. Lacy did not work outside the home during the marriage. At the time of

the trial she was working about ten hours per week as a waitress. She earned


1
  Kristin’s other child is in the care of the child’s father, Kurtis Glenn. The relationship
between Kyle and Lacy was complicated by the fact Kurtis was in a relationship with
Lacy for a period of time. Kurtis and Kristin had problems in their own child custody
arrangements.
                                         4


about $4862 per year. After the parties separated, Lacy and the child lived with

her parents, then with Lee Sandmeier (a paramour) for a month or two, then back

with her parents, and then in her own residence in Knoxville. Lacy experienced

some depression after the birth of the child.

       The district court issued a dissolution decree for the parties on

December 30, 2013. The court placed the child in the parties’ joint legal custody,

with Lacy having physical care. The court did not follow the recommendation of

Dr. Fialkov, finding he was biased in favor of Kyle, who had paid for the

evaluation. The court found Lacy had been the primary caretaker prior to the

order on temporary matters. Kyle was granted visitation one evening each week,

alternating weekends, alternating holidays, and three weeks in the summer.2

Kyle was ordered to pay child support of $829 per month. He was also ordered

to pay rehabilitative alimony of $500 per month for twenty-four months. Kyle was

ordered to pay $8500 for Lacy’s trial attorney fees.       Kyle now appeals the

physical care and spousal support provisions of the dissolution decree.

       II. Standard of Review.

       Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). We examine the entire

record and determine anew the issues properly presented. In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the factual

findings of the district court, but are not bound by them. In re Marriage of Geil,

509 N.W.2d 738, 741 (Iowa 1993).


2
  The summer vacation increases to four weeks when the child is old enough to attend
kindergarten.
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      III. Physical Care.

      A.    Kyle first claims the district court improperly disregarded the

recommendation of Dr. Fialkov. He states Dr. Fialkov’s recommendation was

based on the results of tests and the scores on those tests speak for themselves.

He also states it is not evidence of bias that Dr. Fialkov knew the result of his

evaluation prior to filing his report because all of the tests had been completed by

the time he made his preliminary recommendation.

      The court determines the weight to be given to the recommendation in a

child custody evaluation. In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa

Ct. App. 1998). A lack of neutrality by the evaluator is a factor the court takes

into consideration in assigning weight to the recommendation. In re Marriage of

Rebouche, 587 N.W.2d 795, 799 (Iowa Ct. App. 1998).                  We note the

recommendation in a child custody evaluation is simply that, a recommendation.

See id. (noting an expert’s recommendation is not binding on the court).

Dr. Fialkov’s recommendation is but one factor in our overall consideration of the

evidence.

      B. Kyle contends the district court should have granted him physical care

of the parties’ child. He states he is the more stable parent. He points out he is

living in the same home and has the same employer as at the time the parties

married.    He states Lacy has moved more often, lacked commitment to

completing her education, and has an unstable work history. He also states he is

willing to support Lacy’s relationship with the child, while Lacy permitted him to

have only minimal contact with the child between the time she moved out of the

home until the temporary order was entered.
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       The critical issue before us is the best interests of the child. Iowa R. App.

P. 6.904(3)(o). This must, of necessity, be the first and governing consideration

in our discussion.    Rebouche, 587 N.W.2d at 797.          The factors the court

considers in awarding custody are enumerated in Iowa Code section 598.41

(2011) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The

court should select a custodial parent who can minister more effectively to the

long-range best interests of the child. In re Marriage of Kramer, 297 N.W.2d 359,

363 (Iowa 1980).     The objective should always be to place the child in the

environment most likely to bring him to a healthy physical, mental, and social

maturity. In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007). Each

custody decision is based on its own particular facts. In re Marriage of Will, 489

N.W.2d 394, 397 (Iowa 1992).

       Much time and energy in the dissolution trial was spent in presenting

evidence concerning allegations of infidelity by both of the parties. “[W]hile a

parent’s moral misconduct is a serious consideration, it is only one of several

factors to be considered.” In re Marriage of Hart, 547 N.W.2d 612, 614 (Iowa Ct.

App. 1996). It is a factor to be “weighed most heavily only in those cases where

the misconduct occurred in the presence of the children.”        In re Marriage of

Roberts, 545 N.W.2d 340, 343 n.1 (Iowa Ct. App. 1996). Thus, there are only

two instances that are of interest to this court—Lacy’s decision to move with the

minor child into Lee’s home and Kyle’s decision to live with Kristin while he was

exercising joint physical care. To the extent we consider moral misconduct in

this case at all, it does not weigh more heavily against one party or the other.
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         An important factor in determining the appropriate parent to provide

physical care for a child is to look at which parent was the primary caretaker

during the marriage. Hansen, 733 N.W.2d at 696 (“[S]tability and continuity of

caregiving have traditionally been primary factors.”). “[T]he successful caregiving

by one spouse in the past is a strong predictor that future care of the child[] will

be of the same quality.” Id. at 697. Lacy was the primary caregiver from the time

the child was born until joint physical care was established in the temporary

order.

         Lacy’s testimony detailed activities she engaged in with the child. She

showed that she involved him in play activities with other children and in activities

with other family members. Lacy was the parent who took the child to medical

appointments.      We also note, as did the district court, that there were no

problems with Kyle having access to the child after the temporary order was

entered.

         The record shows both Kyle and Lacy would be suitable caretakers for the

child. We find the following statement by the Iowa Supreme Court to be very

helpful in this circumstance:

         There is good reason for us to pay very close attention to the trial
         court's assessment of the credibility of witnesses. A trial court
         deciding dissolution cases “is greatly helped in making a wise
         decision about the parties by listening to them and watching them
         in person.” In contrast, appellate courts must rely on the printed
         record in evaluating the evidence. We are denied the impression
         created by the demeanor of each and every witness as the
         testimony is presented.

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citations omitted).

The district court had the opportunity to observe the parties and the witnesses,
                                          8


and came to the conclusion it was in the child’s best interests to be placed in the

physical care of Lacy. We decline to modify the court’s determination.

       IV. Spousal Support.

       A. Kyle claims the district court improperly awarded Lacy spousal support

of $500 per month for twenty-four months.          He asserts that at the time the

temporary order was entered the parties had entered into a stipulation on all

issues, including an agreement there would be no award of spousal support. A

stipulated dissolution decree was drawn up at that time, but was not submitted to

the court because the ninety-day waiting period found in section 598.19 had not

elapsed. Kyle later changed his mind about the issue of physical care. The

proposed stipulated decree was never submitted to the court.

       Prior to the trial, Kyle asked the court to enforce the property distribution in

the proposed stipulated decree. Lacy asked the court to address the issues of

property division and alimony. At that time Kyle did not argue that the issue of

alimony had already been encompassed in the proposed stipulated decree.

Furthermore, the court did not address the issue of whether Lacy was precluded

from receiving alimony due to the proposed stipulated decree. Kyle did not file a

post-trial motion. See In re Marriage of Maher, 596 N.W.2d 561, 567 (Iowa

1999) (finding error had not been preserved when an issue had not been raised

at trial or in a post-trial motion). We conclude Kyle did not preserve error on his

claims regarding the stipulation.

       B. Kyle also claims Lacy is not entitled to spousal support because he

has already assisted her in reestablishing her life through the distribution of

property. In the temporary order Kyle paid Lacy $3000, which he testified was to
                                         9


help her go back to school. He also agreed to pay off the debts on her vehicle

and wedding rings so that she left the marriage with very little debt.

         “Property division and alimony should be considered together in

evaluating their individual sufficiency.” In re Marriage of Trickey, 589 N.W.2d

753, 756 (Iowa Ct. App. 1998). Spousal support is not an absolute right. In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).             Whether spousal

support is proper depends on the facts and circumstances of each case. In re

Marriage of Brown, 487 N.W.2d 331, 334 (Iowa 1992).              When determining

whether spousal support is appropriate, we considered the relevant factors found

in section 598.21A. Hansen, 733 N.W.2d at 704.

         In awarding Lacy spousal support, the district court noted the substantial

difference in the parties’ earning capacities, Lacy’s absence from the job market

during the marriage, her responsibility to care for the child, the time and expense

necessary to acquire training necessary to find appropriate employment, and the

fact there was no division of Kyle’s 401(k) account. We agree with the district

court’s determination Lacy will need a period of readjustment so that she can

complete her education and acquire the skills to be able to support herself in the

future. We conclude the court properly ordered Kyle to pay spousal support of

$500 per month for twenty-four months. A district court has considerable latitude

in making an award of spousal support, and we will disturb the court’s award only

if it is inequitable. In re Marriage of Schenkelberg, 824 N.W.2d 481, 486 (Iowa

2012).
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       V. Appellate Attorney Fees.

       Lacy asked for attorney fees for this appeal. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s discretion.” In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We consider the needs of the party

seeking attorney fees, the ability of the other party to pay, and the relative merits

of the appeal. Id. We determine Kyle should be responsible for paying $1000

towards Lacy’s appellate attorney fees.

       We affirm the decision of the district court.     Costs of this appeal are

assessed to Kyle.

       AFFIRMED.
