                      IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0784
                                 Filed May 25, 2016


SCOTT THOMAS WALKER,
    Petitioner-Appellee,

vs.

BRITTANI LEAH LUSK,
     Respondent-Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



         The mother appeals from the district court’s custody and child support

order.       AFFIRMED       AS    MODIFIED;      REMANDED        FOR    FURTHER

PROCEEDINGS.



         Lynn C.H. Poschner of Borseth Law Office, Altoona, for appellant.

         Samantha J. Gronewald of Sullivan & Ward, P.C., West Des Moines, for

appellee.



         Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

        Brittani Lusk appeals from the district court’s order establishing custody,

visitation, and child support for her minor child, A.W., born in 2011. Brittani

maintains the child should have been placed in her physical care rather than the

father, Scott Walker’s. She also challenges the district court’s calculation of her

child support obligation and the award to Scott of $4000 for trial attorney fees.

Both Brittani and Scott ask that we award them $6000 in appellate attorney fees.

I. Background Facts and Proceedings

        Brittani and Scott met in 2009 and moved in together shortly after; the

parties got engaged in late 2010, but they never married. A.W. was born in

2011.    The parties resided with A.W. in Des Moines until Brittani ended the

relationship in the summer of 2014; Brittani moved to Minnesota to live with her

parents in July 2014.

        As the district court found:

                After A.W.’s 2011 birth, both parents cared for A.W. and
        participated in all critical decision making concerning A.W. Brittany
        was primarily responsible for taking A.M. to, and retrieving A.W.
        from, daycare and medical appointments due to her work schedule
        and the fact that Scott drove a work truck that did [not]
        accommodate a car seat. Scott and his mother would assist with
        pick up and drop off as needed to accommodate Brittani’s
        schedule. Scott’s mother cared for A.W. an average of one or two
        times per week while the parents lived together and the court finds
        that she is physically capable of doing so.
                Scott was the primary cook and financial provider for the
        family. Brittani did the cleaning and laundry. When Scott was out
        of town overnight for business, Brittani was A.W.’s primary care
        provider. She would rely upon Scott’s mother for additional help
        when needed. Scott and Brittani shared other duties regarding
        A.W.’s care.
                Brittany required time by herself before and after A.W. was
        born. Activities she participated in include going out with friends,
        riding and/or caring for her horse, attending horse
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       shows/informational meetings about horse shows, and playing
       volleyball in a weekly league. Scott was respectful of Brittani’s
       need for time to herself. He cared for A.W. when Brittani engaged
       in these activities.

Both parents took an active role in caring for A.W.

       Scott owns the home the parties lived in and that he continues to live in.

He has remained with the same employer since 2010 and he is a valued member

of the company; Scott’s previous position at the company required some

overnight travel, but a new position was created for him in August 2014 when

Scott expressed that he would not be able to continue traveling for work while

caring for A.W.     Scott’s salary is made up of $30,000 in base salary plus

commissions. To determine his yearly income, the court averaged his annual

salary from 2011–2014.

       Brittani is not financially independent. She moved from the family home in

Des Moines back to her parents’ home in Minnesota.               While living with her

parents, Brittani does not pay for rent or food.1 Brittani has had seven different

jobs since 2009, and she was terminated from at least one of those positions.

Brittani’s current position pays her eighteen dollars per hour. She testified she is

guaranteed a minimum of thirty hours per week and typically works between

thirty-five and forty hours each week. On cross-examination, she admitted she is

physically able to work forty hours per week and her employers “do whatever

they can to accommodate [her] to make it closer to” forty hours. Her parents

expressed that Brittani and A.W. could continue living with them for as long as



1
  Brittani testified that she was supposed to pay her parents $900 per month for rent, but
they agreed she could pay her own legal fees in lieu of paying them rent.
                                          4


they wish to do so. Additionally, Brittani’s parents offered to pay tuition for A.W.

to attend a pre-school near their home.

      When Brittani left the family home, she moved to Minnesota without A.W.

After she left, Brittani and Scott came to an agreement that they would take turns

caring for A.W. in two-week periods until a more permanent solution was

reached. On August 6, 2014, unbeknownst to Scott, Brittani and her mother

drove to Des Moines and took A.W. from daycare.           Per Scott and Brittani’s

agreement, A.W. was supposed to remain in Scott’s care until August 16.

Brittani absconded with A.W. back to Minnesota and then refused to respond to

calls or messages from Scott for three days. At trial, Brittani testified that she

regretted taking A.W. in that way and knew she should have made a different

choice.   She also testified that she intended to remain living in Minnesota

whether or not A.W. was placed in her physical care.

      On April 15, 2015, the district court filed its order placing A.W. in Scott’s

physical care.    The court determined Brittani’s child support obligation by

averaging Scott’s salary from the prior four years and by imputing income to

Brittani as if she was working forty hours per work at her position. She was

ordered to pay $471.69 per month. Additionally, Brittani was ordered to pay

$4000 of Scott’s attorney fees.

      Brittani appeals.

II. Standard of Review

      We review custody decisions and child support obligations de novo. In re

Marriage of Olson, 705 N.W.2d 312, 313 (Iowa 2005); see also In re Marriage of

Belger, 654 N.W.2d 902, 904 (Iowa 2002). We give weight to the district court's
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findings, especially regarding the credibility of witnesses, but are not bound by

them. Iowa R. App. P. 6.904(3)(g). “Prior cases are of little precedential value,

except to provide a framework for analysis, and we must ultimately tailor our

decision to the unique facts and circumstances before us.” In re Marriage of

Kleist, 538 N.W.2d 273, 276 (Iowa 1995).

III. Discussion

      A. Physical Care

      The criteria governing custody decisions are the same whether the

parents are dissolving their marriage or are unwed.      Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988). The controlling consideration is the best interest of

the children. Iowa R. App. P. 6.904(3)(o). As in this case, where neither party

requests joint physical care, we use the factors enumerated in Iowa Code section

598.41(3) (2013) and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974), to determine which of the two parents is most likely to provide an

environment that brings the children 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). Additionally, “the factors of continuity, stability, and approximation are

entitled to considerable weight.”   Id. at 700.   Not all factors are given equal

consideration, and the weight of each factor depends on the specific facts and

circumstances of each case. In re Marriage of Williams, 589 N.W .2d 759, 761

(Iowa Ct. App.1998).    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).
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        Brittani maintains A.W. should have been placed in her physical care

because she has historically been the primary caregiver and A.W. thrived in her

care.     She asserts that our case law considering continuity, stability, and

approximation requires us to modify the district court’s placement of A.W.

Additionally, she maintains the record establishes that she is the parent who is

more likely to facilitate and support a relationship between A.W. and the other

parent.

        Both parents were involved in caring for A.W.; each spent time away from

the home without A.W. and relied on the other parent to take on all of the

responsibilities while they were away. Additionally, as an example, while Scott

was rarely in charge of giving A.W. a bath, Brittani was rarely responsible for

making the family’s meals. Although Brittani maintains that she has been A.W.’s

primary caregiver, the district court found—and the record supports—that the

parents shared the responsibility of caring for A.W.

        Placing A.W. in Scott’s physical care provides her with more stability.

Scott is financially independent and has maintained consistent employment. In

his physical care, A.W. can remain in the only home she has ever known as well

as continuing to attend the daycare and school that Scott and Brittani chose for

her. Scott’s mother lives on the same street and has helped with caring for A.W.

one or two times a week since A.W.’s birth; in Scott’s care, A.W. will continue to

have regular contact with her. A.W. also has family that she loves and is bonded

with in Minnesota, but historically she has seen them only once or twice a month.

Brittani chose to relocate to Minnesota—approximately four hours from the family

home—and she testified that she intended to remain there.
                                         7


        Brittani maintains she is the parent who is more likely to facilitate and

support a relationship between A.W. and the other parent. We do not believe the

record supports this assertion. Brittani’s mother—who Brittani lives with and is

financially dependent on—has not been supportive.           We acknowledge that

Brittani’s mother testified she would support the relationship, but her actions

indicate otherwise. The mother testified that she did not like Scott and that she

stopped talking to Brittani when she first moved to Iowa to live with Scott.

Throughout A.W.’s lifetime, the mother only came to Des Moines one time—

when she and Brittani picked up A.W. from daycare and removed her from the

state without Scott’s knowledge. Brittani claims Scott’s mother never liked her

and will not encourage a relationship between A.W. and Brittani, but Scott’s

mother helped care for A.W. one or two times weekly throughout Scott and

Brittani’s relationship, and Brittani never objected to her involvement.

        Both Scott and Brittani love A.W. and are capable of providing excellent

care for her. However, the distance between the parties’ residences make joint

physical care unworkable, and neither party requested it. We agree with the

district court that it is in A.W.’s best interests to be placed in Scott’s physical

care.

        B. Child Support

        Brittani also appeals the child support award. She maintains the district

court improperly imputed income to her, improperly averaged Scott’s income,

began the payment of child support prematurely, and improperly gave Scott the

entire deduction for daycare expenses.
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      In applying the child support guidelines, the court must determine the

parents’ monthly income from the most reliable evidence presented.            In re

Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). “Both parents have a

legal obligation to support their children, not necessarily equally but in

accordance with his or her ability to pay.” Moore v. Kriegel, 551 N.W.2d 887, 889

(Iowa Ct. App. 1996). There is “a rebuttable presumption that the amount of child

support which would result from the application of the guidelines prescribed by

the supreme court is the correct amount of child support to be awarded.” Iowa

Ct. R. 9.4. However, the obligation “may be adjusted upward or downward . . . if

the court finds such adjustment necessary to provide for the needs of the

children or to do justice between the parties under the special circumstances of

the case,” id., as long as the court makes “a written finding that the guidelines

would be unjust or inappropriate” under specified criteria, id. r. 9.11. “When a

parent voluntarily reduces his or her income or decides not to work, it may be

appropriate for the court to consider earning capacity rather than actual earnings

when applying the child support guidelines.”     In re Marriage of Nelson, 570

N.W.2d 103, 106 (Iowa 1997). In making this determination, “[w]e examine the

employment history, present earnings, and reasons for failing to work a regular

work week.” Id.

      The district court made these findings:

             Based on the documentary evidence presented at trial,
      Brittani currently earns $18.00 per hour with her current employer.
      She testified that she is guarantee 30 hours of work per week, she
      generally averages around 35 hours of work per week, and there is
      no reason she is not capable of working a 40 hour work week. On
      this basis Scott asks the court to impute an additional five hours of
      work and the earnings therefrom to Brittani per week. The court
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       finds that based upon Brittani’s earning capacity and in order to
       provide adequately for A.W.’s needs, it is reasonable to set
       Brittani’s gross annual income for purposes of calculating child
       support under the Guidelines at $37,440.

       The court imputed income to Brittani without making a written finding that

application of the guidelines would be unjust or inappropriate. See Iowa Ct. R.

9.11. We acknowledge the court stated it was imputing income “in order to

provide adequately for A.W.’s needs,” but the statement is not a substitute for the

finding of substantial injustice or necessity.

       On our de novo review, we determine the record does not support a

finding that substantial injustice would result if the court used Brittani’s actual

hours worked, that adjustments are necessary to provide for the needs of A.W.,

or that Brittani is voluntarily underemployed without just cause. See Iowa Ct. R.

9.11(1), (2), (4). While Brittani is working less than a typical full-time schedule,

she earns more at her present job than she has at any of her previous places of

employment. The job position uses her education, and she testified that there is

the possibility of promotion at the company. Additionally, there is no indication

that A.W.’s care costs more than that of other children, as anticipated by the

guidelines. Thus, there is no need to adjust Brittani’s salary upward to determine

her child support obligation.

       We have considered Brittani’s other claims of error regarding the child

support obligation and we find no issues with the district court’s decisions. We

remand to the district court to recalculate Brittani’s obligation based on the

present financial circumstances of the parties and the child support guidelines.

See In re Marriage of Hoffman, 867 N.W.2d 26, 37 (Iowa 2015).
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       C. Trial Attorney Fees

       Brittani maintains the district court abused its discretion when it ordered

her to pay $4000 of Scott’s trial attorney fees.        The court may award the

prevailing party reasonable attorney fees. See Iowa Code § 600B.26.

       Although Scott earns more money annually than Brittani, Brittani lives at

her parents’ home and does not pay rent or buy food. Additionally, Scott filed a

writ of habeas corpus after Brittani absconded with A.W. Brittani maintains this

should not be considered because the issue was resolved through mediation

rather than litigation, but filing the writ and participating in mediation resulted in

additional fees. We cannot say the district court abused its discretion in ordering

Brittani to pay approximately one quarter of Scott’s trial attorney fees.

       D. Appellate Attorney Fees

       Both parties ask us to award them $6000 in 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

party to pay, and the relative merits of the appeal. Id. In a custody proceeding

between parents who have never married, the court may award the prevailing

party reasonable attorney fees. Iowa Code § 600B.26. Taking into consideration

these relevant factors, we decline to award either party appellate attorney fees.

IV. Conclusion

       It is in A.W.’s best interests to be placed in Scott’s physical care, and the

district court did not abuse its discretion by ordering Brittani to pay $4000 of

Scott’s trial attorney fees. We remand to the district court to recalculate Brittani’s
                                        11


child support obligation. We decline to award either party appellate attorney

fees, and the costs of this appeal should be assessed equally to each party.

      AFFIRMED        AS     MODIFIED;        REMANDED        FOR     FURTHER

PROCEEDINGS.

      Danilson, C.J., concurs; Vogel, J., dissents in part.
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VOGEL, Judge. (dissenting in part)

       I agree with the majority physical care of the child should be placed with

Scott and the trial court did not abuse its discretion in ordering Brittani to pay

Scott’s trial attorney fees.   However, because I believe the court properly

determined child support based on Brittani’s testimony, I dissent in part.

       Brittani testified she was guaranteed thirty hours per week, but she

typically works “anywhere between thirty-five, and I get as close to forty as

possible.” She agreed there was no reason why she could not work forty hours a

week. Brittani testified her employer does “whatever they can to accommodate

me to make it closer to that forty” hours per week. It is thus consistent with the

evidence for the district court to calculate Brittani’s earnings at forty hours per

week. See In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991) (“The

court must determine the parent’s current monthly income from the most reliable

evidence presented. This often requires the court to carefully consider all of the

circumstances relating to the parent’s income.”).

       There is, at most, a five-hour-per-week difference between the number of

hours Brittani asserted she works and the number of hours the court used in it

child support calculations. The court concluded utilizing forty hours per week

was reasonable “in order to provide adequately for A.W.’s needs.” See Iowa Ct.

Rs. 9.4 (noting the child support amount “may be adjusted upward or downward,

however, if the court finds such adjustment necessary to provide for the needs of

the children”); 9.11(2) (stating the court can vary the amount of child support

upon a written determination that the “[a]djustments are necessary to provide for

the needs of the child(ren)”). With Brittani’s own testimony that she is offered
                                             13


and works as close to forty hours per week as possible, I would conclude the

court properly applied the child support guidelines.

          I differ from the majority on one further point regarding child support. I

would modify the date that Brittani’s child support obligation should commence.

The parties’ stipulated agreement as to physical care and child support was

incorporated into the temporary order of August 22, 2014. Under that order, the

parties alternated parenting time every two weeks, and Scott was ordered to pay

Brittani $107.00 per month in child support.            The final decree delayed any

change in the physical care arrangement until August 1, 2015, ordering the

parties to continue to alternate care every two weeks until then, but the court

ordered Brittani’s new child support obligation of $471.69 to begin on the first day

of the month following the entry of the order, i.e., May 1, 2015. I would modify

that provision of the district court’s decision to make Brittani’s child support

obligation commence on August 1, 2015, the same day the new physical care

arrangement begins. From May 1, 2015, until the end of July 2015, I would

require the child support obligation ordered in the temporary order to remain in

effect.

          In all other issues, I concur with the court’s opinion.
