                    IN THE COURT OF APPEALS OF IOWA

                                   No.13-1462
                               Filed July 16, 2014

IN RE THE MARRIAGE OF NICOLE CLEVERINGA
AND DARIN L. CLEVERINGA

Upon the Petition of
NICOLE CLEVERINGA,
      Petitioner-Appellant,

And Concerning
DARIN L. CLEVERINGA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson,

Judge.



       Nicole Sava (formerly known as Nicole Cleveringa) appeals the decree

dissolving her marriage to Darin Cleveringa. AFFIRMED AS MODIFIED AND

REMANDED.



       Matthew G. Sease of Kemp & Sease, Des Moines, and Randall G. Sease

of Sease Law Firm, Hartley, for appellant.

       Randy L. Waagmeester of Waagmeester Law Office, P.L.C., Rock Rapids,

for appellee.



       Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       Nicole Sava (formerly known as Nicole Cleveringa) appeals the decree

dissolving her marriage to Darin Cleveringa. Nicole claims she should have been

granted physical care of the parties’ two minor children and the district court

should have granted her request for attorney fees.            Both parties request

appellate attorney fees.

       We modify the decree and grant Nicole physical care of the children. We

remand this matter to the district court for determination of Darin’s child support

obligation.   We decline to disturb the district court’s ruling on attorney fees.

Nicole’s request for appellate attorney fees is granted in part.

I.     Background Facts and Proceedings

       Nicole, a native of New York, married Darin, a native Iowan, on August 16,

2003. Nicole filed a petition for dissolution of marriage on March 12, 2012. The

case proceeded to trial on August 28, 2013, and a decree of dissolution was

entered on August 29, 2013.

       At the time of trial, Darin was an active-duty Marine stationed in Yuma,

Arizona, where he lived with his girlfriend, Michelle Clark, and her children.

Nicole resided in New York with her boyfriend, Jason Mingo. She is a former

Marine and the parties met while they were both stationed in Barstow, California.

Both of the parties’ children were born while they were in Barstow. Nicole left the

Marines after her initial four-year enlistment; Darin intends to remain in the

military until he has served twenty years.
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       As is typical of military families, the parties led something of a nomadic

lifestyle. After leaving Barstow, the family lived in Hawaii and, later, in Plato,

Missouri.   Darin was also deployed twice to Iraq.       During and following the

second deployment, while the parties were in Plato, the marriage began to

unravel. By all accounts, both parties engaged in destructive behavior during this

time, including alcohol abuse. The alcohol abuse resulted in a pair of serious

incidents which reflect negatively on both parties. During the first incident, Nicole

hit Darin, giving him a black eye. He responded by twisting her arm, resulting in

a shoulder injury and a broken clavicle. Nicole attempts to present this incident

as an example of Darin’s propensity for violence; however, the record shows

both parties were at fault. During the second incident, Nicole started a fight with

another individual after she had been drinking. In an attempt to break up the

fight, Darin fired his military weapon into the air.        He was professionally

disciplined for his actions.

       When Darin was transferred from Missouri to Arizona, Nicole and the

children moved to Rock Valley, Iowa, near Darin’s family. Despite purchasing a

home together in the area, the move was temporary. In 2012, Nicole and the

children moved to New York.

       In May 2012, the parties began discussing a temporary solution regarding

custody and physical care of the children. Their temporary stipulation specified

the children would be in Darin’s care during the summer of 2012, returning to

Nicole no later than August 25, 2012. The children traveled to Arizona to be with
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Darin; however, he refused to return them as required by the stipulation. 1 After

Nicole filed a motion to enforce the temporary stipulation, a hearing on temporary

matters was held on October 29, 2012. The district court found Darin failed to

return the children in violation of the temporary stipulation and ordered Darin to

comply with the stipulation.

       Upon return, the children lived with Nicole in Tarrytown, New York. They

attended school and, by all accounts, were happy and well-adjusted.            The

children returned to Arizona in June 2013 to spend the summer with Darin. After

they left, Nicole moved to neighboring Dobbs Ferry, New York, to live with her

boyfriend. At the time of trial, the children had not yet returned to New York; if

they had, they would have attended a different school in Dobbs Ferry.

       The district court awarded the parties joint legal custody, but due to

logistics, had to select one parent to provide physical care. Finding both parents

to be suitable providers, the court granted Darin physical care and granted

substantial visitation to Nicole.   The court recognized Nicole had been the

primary caregiver, but found Darin had made significant personal improvements

and offered the children an opportunity to attend a familiar school. Also, the

court was impressed with the testimony of Michelle Clark, Darin’s girlfriend. The

court noted it did not have the benefit of personally observing Nicole’s boyfriend,

although there was no reason to doubt his fitness to reside with the children. The

court ordered each party to pay their own attorney fees.

       Nicole now appeals the district court’s ruling on physical care.


1
 Darin claims he signed the temporary stipulation because Nicole was threatening to
withhold the children from him if he refused.
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II.    Standard of Review

       As an equitable proceeding, we review the decree of dissolution de novo.

Iowa R. App. P. 6.907. Though we are not bound by the findings of the district

court, we will give them weight. In re Marriage of Sjulin, 431 N.W.2d 773, 776

(Iowa 1988).    “The decision to award attorney fees rests within the sound

discretion of the court.” In re Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa

2003). Absent a finding of abuse of discretion, we will not disturb the district

court’s decision. Id.

III.   Discussion

       A.      Custody

       Nicole claims it is in the best interest of the children for her to have

physical care, pointing to her history as the children’s primary caregiver and her

greater ability to provide a stable home environment.

       Iowa’s traditional and statutory child custody standard is “the best interest

of the child.” In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007); see

Iowa Code § 591.41 (2011). This standard provides the necessary flexibility to

take the unique facts of each case into consideration.         Id. at 696.   A non-

exclusive list of factors used to determine the “best interest of the child” is found

in Iowa Code section 598.41(3), with the primary factors being stability,

continuity, and approximation. Id. at 696-97.

       Upon our de novo review of the record, we believe the best interest of the

children is served by granting Nicole physical care. The court gives stability and

continuity considerable weight. Id. at 700. Likewise, following the principle of
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approximation, the court generally allocates parents’ custodial time in roughly the

same proportion as the care the child was familiar with prior to the dissolution of

the marriage. Id. at 697. The approximation principle helps ensure the unique

structure of the individual family is preserved as much as possible in the child’s

new life. See id. at 697-98. The record shows that Nicole was the primary

caregiver for the children during the marriage.

      Nicole was honorably discharged from the Marine Corps six months after

the birth of the couple’s first child and became a stay-at-home mom until the

couple’s second child was two or three years old. When the children started

school, Nicole was the parent responsible for picking them up, and she remained

the primary caregiver. Darin was deployed twice in his career. Consequently, as

is typical for many military families, Nicole became the sole caregiver during this

time. Nicole also continued her role as primary caregiver through the couple’s

legal separation. In summary, with the exception of the time the children spent

with Darin in Arizona, Nicole has consistently been their primary caregiver.

      In contrast, Darin is up for re-enlistment and expressed uncertainty as to

where his future employment, if any, would take him.            Additionally, Darin

continues to have an irregular schedule, working from 6:00 p.m. at night to 6:00

a.m. in the morning on a “two days on, two days off” schedule. Darin relies on

his current girlfriend to watch his children while he is at work. See In re Marriage

of Gray, No. 13-1351, 2014 WL 2431677, at *4 (Iowa Ct. App. May. 29, 2014)

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

abilities to care for [the child] fulltime.”). Since Darin’s girlfriend acts as a de
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facto parent due to Darin’s schedule, it is important to examine that relationship

as well—“[i]f a parent seeks to establish a home with another adult, that adult’s

background and his or her relationship with the children becomes a significant

factor in a custody dispute.” In re Marriage of Decker, 666 N.W.2d 175, 179

(Iowa Ct. App. 2003).

       The district court found Darin’s girlfriend, Michelle Clark, to have good

parenting skills and placed significant emphasis on Michelle as a stabilizing

factor in Darin’s life. However, we weigh more heavily our concern that the home

environment Darin has established for the children “is premised upon the

success of [his] current relationship, absent which a nomadic and unstable

lifestyle may resume.” See In re Marriage of Hansen, No. 13-0423, 2013 WL

5951219, at *2 (Iowa Ct. App. Nov. 6, 2013). In contrast, Nicole has taken solid

steps to independently provide a stable home environment for the children.

       In determining the “best interest of the child,” additional relevant facts and

circumstances are also considered. Hansen, 733 N.W.2d at 696. In particular,

the court considers “under the whole record which parent can minister more

effectively to the long-range best interests of the children.” In re Marriage of

Winter, 223 N.W.2d 165, 166-67 (Iowa 1974).          The court’s goal is to award

physical care of the children to the parent who can provide “the best environment

possible for their continued development and growth” and who is most likely to

foster physical and mental health and social maturity. Hansen, 733 N.W.2d at

700.   In this context, we find the district court relied too heavily on Darin’s

description of his new family life. Darin paints a compelling picture, but upon
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closer review, the record shows Darin tends to cast himself as the victim and

lacks the ability to separate his children’s needs and wants from his own.

Though not determinative, the facts do speak to the parents’ long-term ability to

effectively “foster physical and mental health and social maturity.” Id. at 695.

       Additionally, “[t]he court shall consider the denial by one parent of the

child’s opportunity for maximum continuing contact with the other parent, without

just cause, a significant factor in determining the proper custody arrangement.”

Iowa Code 598.41(1)(c). Darin denied Nicole physical contact with the couple’s

children for several months when he violated the temporary custody agreement.

Darin refused to return the children to Nicole after they had spent the summer of

2012 with him. In ruling Darin had to return the children to the physical care of

Nicole, the district court specifically noted:

       The children had been under Nicole’s primary care until Darin
       exercised summer visitation and then wrongly refused to return
       them. He presents an environment to the children that is not as
       stable as Nicole’s. He is cohabitating with his second girlfriend
       since separation. There is inadequate housing for two adults and
       six children. The children miss their mother, who has suitable
       housing and has arranged for their schooling. Darin should not be
       rewarded for violating the parties’ agreement.

We find the district court placed too little emphasis on Darin’s disregard for the

temporary custody agreement.          His disregard of the agreement shows his

reluctance to fully and appropriately support the children’s relationship with their

mother.

       For the reasons stated above, we find that the children’s best interest is

served by placing physical care with Nicole.
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      B.     Attorney Fees

      Nicole claims the district court should have awarded her attorney fees

because Darin earns a significantly larger salary and because the award would

serve as a punishment for Darin’s violating the temporary stipulation.         Both

parties request appellate attorney fees.

      District courts are given considerable discretion in ruling on a request for

attorney fees. In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). The

court examines the relative ability of the parties to pay and any award must be

fair and reasonable. Id. Despite Darin’s greater income, we find no abuse of

discretion in the court’s ruling. Additionally, we will not award attorney fees for

past misconduct, particularly where that conduct is not the subject of this appeal

and was adequately addressed by the district court at the appropriate time.

      We decline to award Darin appellate attorney fees. However, we award

appellate attorney fees to Nicole. Appellate attorney fees are discretionary. In re

Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).              “Factors to be

considered in determining whether to award attorney fees include: the needs of

the party seeking the award, the ability of the other party to pay, and the relative

merits of the appeal.”    Id. (internal quotations omitted).   Nicole successfully

appealed the physical care award, Darin has significantly greater income, and

the ability to pay a portion of Nicole’s appellate attorney fees. We award Nicole

$3000 in appellate attorney fees.

      Costs of this appeal are taxed to Darin.

      AFFIRMED AS MODIFIED AND REMANDED.
