                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0538
                             Filed November 8, 2017

IN RE THE MARRIAGE OF LISA APPENZELLER
AND DANIEL APPENZELLER

Upon the Petition of
LISA APPENZELLER,
      Petitioner-Appellee,

And Concerning
DANIEL APPENZELLER,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.



      The husband appeals from a dissolution decree, challenging the award of

physical care and the economic provisions of the decree. AFFIRMED.



      Eric D. Puryear and Eric S. Mail of Puryear Law, P.C., Davenport, for

appellant.

      Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,

Davenport, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                        2


MCDONALD, Judge.

       This is an appeal from a decree dissolving the marriage of Lisa and Daniel

Appenzeller. The district court awarded the parents joint legal custody of their

twin children, with Lisa to have physical care of the children and Daniel to have

liberal visitation.   On appeal, Daniel challenges the award of physical care,

including two evidentiary issues related to the physical care determination. He

contends the district court abused its discretion in allowing Lisa to use Daniel’s

substance-abuse-treatment records for impeachment purposes and erred in

allowing the children’s therapist to testify regarding the children’s therapy

sessions. Daniel also challenges the economic provisions of the decree.

                                        I.

       The parties met in 2011 and were married in 2012.         They have two

children together, twins A.M.A. and A.D.A., born in November 2012. Lisa also

has an older child, S.R., from a previous relationship. Lisa testified she and

Daniel did not know each other very well when they wed since they married only

a year after meeting. Once married, she learned Daniel had issues with alcohol,

substance abuse, and anger management.           She also learned Daniel was

addicted to OxyContin.

       After the parties separated, they agreed Lisa would have physical care of

the children and Daniel would exercise visitation two weeknights per week and

every other weekend.       The physical care arrangement was changed after a

hearing on temporary matters.        The parties transitioned to a shared-care

arrangement on a 2/2/3 schedule, meaning the children alternated overnights

between the parents for periods of two days, two days, and three days. In the
                                         3


hearing on temporary matters, Daniel volunteered he was undergoing substance-

abuse treatment. He also voluntarily produced medical records regarding his

substance-abuse treatment to establish he was doing well and could provide

care for the children.

       Following trial, the district court awarded Lisa physical care of the children

with Daniel to have liberal visitation. The district court found that Lisa was the

primary caretaker of the children during the marriage, although Daniel did provide

assistance.   Daniel’s drug use was also an issue at trial as it pertained to

custody. Daniel denied heroin use at trial until he was confronted on cross-

examination with his complete substance-abuse records, at which time he

admitted to using heroin in the prior five years and parenting the children during

the same period of time he was using heroin. He admitted he told Lisa about his

OxyContin use but never told her about his use of heroin. Daniel’s heroin use

was a factor in awarding Lisa physical care—the district court stated it “[was] very

concerned by the fact Daniel was abusing very serious substances while caring

for his children. Daniel minimizes his addiction and was not forthright or truthful

with his wife or the Court.” In rejecting Daniel’s request for shared care, the

district court found “it is clear the [temporary] shared care arrangement has not

been beneficial for the children,” it had been “difficult” for them, and “there has

been more acting-out by the children.” The district court found there was not

mutual respect between the parties:

              Daniel testified he was the more superior parent and Lisa
       was an average parent. He testified she does her “best.” Daniel
       further placed blame on Lisa for the children being injured while
       being cared [for] by others while they were in the care of Lisa. This
                                        4


      evidence further indicates Daniel’s inability to support Lisa
      effectively in placing the blame on her for such incidents.

The court gave Lisa physical care of the children and gave Daniel visitation every

Wednesday evening and every other weekend.

      The district court ordered child support in the amount of $605.84 per

month for the care of the twins. At the time of trial, Lisa was employed as an

operations administrative assistant with Eastern Iowa Community College. In

2015, her compensation from that position was $31,215.          Daniel was self-

employed as the owner of his business, Two Coats Painting.            At trial, he

contended his net income from the business was $21,000. Lisa contended his

net income was $30,000. Her testimony was based on her knowledge of how

Daniel operated his business, including trading for services.      The testimony

suggested Daniel had annual receipts of approximately $47,000-$50,000. Bank

records showed gross proceeds deposited of $46,262.            For child support

purposes, the district court found Lisa’s annual income to be $34,843 and found

Daniel’s annual income to be $30,000.

      Finally, the parties disagreed on property matters, including the value of

Daniel’s painting business. Lisa estimated its value at $5000. Daniel testified it

was worth $2500—an estimate he cautioned was “maybe a little high but fair.”

He testified his business assets included a 1995 Ford van he valued at $1500,

seven ladders ranging in value from $20-$150 each, a paint sprayer worth $200-

$300, and drop cloths “worth probably nothing.” The court found the value of the

business was $5000 and that the net equity in the parties’ home was $18,222.19.

Lisa was awarded the home. Daniel received the business. Daniel now appeals.
                                         5


                                         II.

       Review of dissolution cases is de novo. In re Marriage of McDermott, 827

N.W.2d 671, 676 (Iowa 2013).        Although our review is de novo, we afford

deference to the district court for institutional and pragmatic reasons.       See

Hensch v. Mysak, No. 17-0348, 2017 WL 4050671, at *1 (Iowa Ct. App. Sept. 13,

2017). This means we give weight to the district court’s findings of fact. See In

re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). This also means we will

affirm the district court unless the district court failed to do substantial equity.

See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of

Lukowicz, No. 14-0088, 2015 WL 162089, at *4 (Iowa Ct. App. Jan. 14, 2015)

(using substantial equity standard). In exercising our review, “[p]rior 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) (citing In re Marriage of

Will, 489 N.W.2d 394, 397 (Iowa 1992)).

                                        A.

       We first address the issue of physical care of the children, including the

related evidentiary challenges. Daniel contends an award of shared care would

be more appropriate under the facts presented.

       When determining whether shared care is appropriate, we typically

consider four factors. See In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa

Ct. App. 2007) (citing In re Marriage of Hansen, 733 N.W.2d 683, 697 (Iowa

2007)). “The factors are (1) ‘approximation’—what has been the historical care

giving arrangement for the child between the two parties; (2) the ability of the
                                         6


spouses to communicate and show mutual respect; (3) the degree of conflict

between the parents; and (4) ‘the degree to which the parents are in general

agreement about their approach to daily matters.’”       Id.   The factors are not

exclusive, however.

               The Iowa Code defines “physical care” as “the right and
       responsibility to maintain a home for the minor child and provide for
       the routine care of the child.” In making the physical care
       determination, we look to the factors set forth in Iowa Code section
       598.41(3) and enumerated in our case law. “Each factor, however,
       does not necessarily impact the decision with equal force.” In
       considering these factors, our ultimate objective “is to place the
       child in the environment most likely to bring him to healthy mental,
       physical, and social maturity.” “The controlling consideration is the
       best interests of the child.” The “best interest of the child includes
       but is not limited to the opportunity for maximum continuous
       physical and emotional contact possible with both parents, unless
       direct physical or significant emotional harm to the child may result
       from this contact. Refusal by one parent to provide this opportunity
       without just cause shall be considered harmful to the best interest
       of the child.” We will “ultimately decide[] by determining under the
       whole record which parent can minister more effectively to the long-
       range best interests of the children.”

In re Marriage of Orr, No. 16-1772, 2017 WL 2183891, at *1 (Iowa Ct. App. May

17, 2017) (citations omitted).

       Here, shared care is inappropriate, and the award of physical care to Lisa

was appropriate and in the best interests of the children.           The historical

caregiving arrangement, as credibly found by the district court, was one in which

Lisa was the primary caregiver. We weigh this factor heavily as stability for the

children is incredibly important. See Hansen, 733 N.W.2d at 698. We are also

concerned about conflict between the parties. Daniel does not show respect for

Lisa or her parenting abilities, and the parties do not appear to communicate

well. Further, the parties do not appear to be in general agreement about daily
                                           7


matters, including the educational needs of the children.     Beyond those four

factors, we note the district court’s determination the children were doing poorly

under the shared-care arrangement. As our ultimate objective is the children’s

best interests, we are reluctant to continue an arrangement that appears to be to

their detriment.    Finally, we note granting Lisa physical care of the twins

maximizes their contact with their half-sibling, S.R. See Marriage of Hunt, 476

N.W.2d 99, 102 (Iowa Ct. App. 1991) (noting importance of maintaining sibling

relationships, including half-siblings).

       Daniel raises several evidentiary issues related to the district court’s

custody determination.       First, he contends his substance-abuse treatment

records are protected by constitution, statute, and case law and should not have

been used at trial. See Iowa Code § 622.10(1) (establishing physician-patient

privilege); Ashenfelter v. Mulligan, 792 N.W.2d 665, 668 (Iowa 2010) (holding

mother had “a statutory and constitutional right to privacy in her medical and

mental health records”).

       Daniel’s contention his records are privileged and should have been

excluded is easily answered: these records were neither offered nor admitted into

evidence. Lisa argues these records were available for use as impeachment,

which is how she used them. See Iowa R. Evid. 5.607 (allowing impeachment).

She also argues equity demands completeness. See Eno v. Adair Cty. Mut. Ins.

Ass’n, 294 N.W. 323, 329 (Iowa 1940) (noting witnesses commonly present only

testimony favorable to their position and “[s]ome one must probe for the possible

(and usual) remainder”). These arguments all compel the conclusion the use of

the records was appropriate.
                                        8


      Daniel additionally argues the materials should not have been

discoverable in the first place. He notes privileged materials are excluded from

the scope of discovery. See Iowa R. Civ. P. 1.503(1). “One resisting discovery

through assertion of a privilege has the burden of showing that a privilege exists

and applies.” Hutchinson v. Smith Labs., Inc., 392 N.W.2d 139, 141 (Iowa 1986).

Asserted privileges are to be drawn narrowly because they are exceptions to

discovery rules. See Exotica Botanicals, Inc. v. Terra Int’l, Inc., 612 N.W.2d 801,

805 (Iowa 2000).

      We conclude Daniel impliedly waived the privilege. “The physician-patient

privilege may be waived by the defendant’s disclosure or consent to disclosure of

the privileged information.” State v. Demaray, 704 N.W.2d 60, 65 (Iowa 2005).

“[V]oluntary disclosure of the content of a privileged communication constitutes

waiver as to all other communications on the same subject.” Miller v. Continental

Ins. Co., 392 N.W.2d 500, 504–05 (Iowa 1986). “Obviously, the law has no

reason to conceal in court what has been freely divulged on the public street, and

the only question in such cases becomes the voluntariness of the revelation and

the scope of the waiver.” Demaray, 704 N.W.2d at 65 (quoting 1 McCormick on

Evidence § 103, at 413). Here, Daniel submitted records of his substance-abuse

treatment in anticipation of the temporary matters hearing. The records showed

a patient compliant with methadone treatment: they contain drug tests from

February, March, April, June, and July 2016 showing positive tests for

methadone and negative tests for all other drugs.       At trial, however, Daniel

admitted to testing positive for opiates—which are delineated separately from

methadone on the drug test records—until “approximately January 2016.” He
                                        9


also admitted to being diagnosed with “severe heroin use disorder and moderate

cannabis use disorder.” In seeking to parcel out the records helpful to him and

exclude from consideration the information unhelpful to him, Daniel attempts to

use the patient-physician privilege as both sword and shield.             This is

impermissible. See State v. Dist. Ct., 218 N.W.2d 641, 644 (Iowa 1974) (“The

physician-patient privilege was not designed, nor will it be extended, to act as a

shield behind which the patient may take refuge after flunking a chapter 321B

blood alcohol test to which he voluntarily assented.”).    We conclude that by

introducing partial records at the temporary matters hearing, Daniel waived his

privilege.

       Daniel’s other evidentiary argument centers on the testimony of the

children’s therapist.   He contends the district court erred in allowing the

therapist, Mary Schnack, to testify as to what the children said to her during

therapy because these statements constituted hearsay. Daniel cites numerous

statements referencing Lisa’s cooking, Daniel’s yelling, and Schnack’s examples

of coached statements as problematic hearsay. Daniel provides two equitable

cases in which reports from a child’s doctor, therapist, or counsel were excluded

as inadmissible hearsay. See In re Marriage of Reschly, 334 N.W.2d 720, 723

(Iowa 1983); In re Marriage of Mennen, No. 09-1821, 2010 WL 2384865, at *3

(Iowa Ct. App. June 16, 2010). Daniel argues the admission of this hearsay was

prejudicial and merits reversal.

       Daniel’s evidentiary challenge does not entitle him to any relief.     We

disagree the statements constituted hearsay. The challenged evidence was not

offered for the truth of the matter asserted. See Iowa R. Evid. 5.801 (defining
                                            10


hearsay). The statements were offered to prove coaching and conflict and as a

foundation for Schnack’s opinion regarding the wellbeing of the children. This

distinguishes the admission of this testimony from the written records in the cited

cases. Even if the evidence was improperly considered, that does not require

reversal given our de novo review of the record. See Erickson v. Blake, No. 15-

0251, 2016 WL 1130578, at *1 (Iowa Ct. App. Mar. 23, 2016) (citing In re

Marriage of Anderson, 509 N.W.2d 138, 142 (Iowa Ct. App. 1993)).                 In

conducting our review of the decree, we do not consider any of the challenged

testimony.     There was thus no prejudice from any of the complained-of

testimony.

       For the foregoing reasons, we affirm the award of physical care of the

children to Lisa. This is the parties’ historical caregiving practice. The parties’

short experiment with a shared-care arrangement has worked to the detriment of

the children. Returning physical care of the children to Lisa, with Daniel having

liberal visitation, is in the best interest of the children.

                                            B.

       We next address the award of child support. Daniel maintains the district

court’s finding that his annual net income was $30,000 is not supported by the

evidence. We disagree. The court must determine a parent’s income from the

most reliable evidence presented. See In re Marriage of Powell, 474 N.W.2d

531, 534 (Iowa 1991).        There was reasonable evidence Daniel made more

money than he reported on his tax returns. Bank deposits showed higher net

proceeds and occasional withdrawals that appeared to be payments to Daniel. A

journal showed a higher income.           Lisa testified Daniel sometimes accepted
                                         11


trades or goods in lieu of financial payment. Based on this evidence we decline

to disturb the child support calculation made by the district court.

                                         C.

       Daniel challenges the property division. He argues the district court erred

in valuing his business and the marital home and therefore subsequently erred in

declining to award Daniel an equalization payment.            Iowa is an equitable

distribution state. See In re Marriage of Hansen, 886 N.W.2d 868, 873 (Iowa Ct.

App. 2016). The division need not be equal to be equitable. See id. In fact, in

short-term marriages, it may be equitable to award the parties the property they

brought into the marriage. See id.

       We conclude the property division is equitable and decline Daniel’s

invitation to revalue the assets at issue. First, the valuations provided by Lisa are

well within the range of the evidence.         See Hansen, 733 N.W.2d at 703

(“Ordinarily, a trial court’s valuation will not be disturbed when it is within the

range of permissible evidence”); In re Marriage of Sullins, 715 N.W.2d 242, 251

(Iowa 2006) (“[W]e will not disturb the district court’s valuation of assets if it was

‘within the permissible range of the evidence’” (citation omitted)). Daniel gave

evidence to support his estimate of the business’s value at $2500.               Lisa

submitted a financial statement valuing it at $5000. On the home’s value, Lisa

presented an assessment valuing it at $127,380. Daniel testified he based his

proposed value, $136,070, off the value given by the website realtor.com.

Second, given the limited assets of both Daniel and Lisa, we conclude an

equalization payment would be improper in this case. See, e.g., McDermott, 827
                                          12


N.W.2d at 683 (considering effect of equalization payment on paying party’s cash

flow).

                                          D.

         Both parties request appellate attorney fees. An award of appellate fees

is not a matter of right but rests in this court’s discretion.     See Sullins, 715

N.W.2d at 255. We consider the needs of the party seeking the award, the ability

of the other party to pay, and the relative merits of the appeal.        Id. Having

considered those factors, we decline to award fees to either party in this matter.

                                          III.

         In light of the above considerations, we affirm the decision of the district

court in all respects.

         AFFIRMED.
