                   IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0094
                              Filed October 15, 2014

Upon the Petition of
KYLE L. DRYSDALE,
      Petitioner-Appellant,

And Concerning
CANDICE ABBOTT,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Robert Hutchison,

Judge.



      Father appeals the court’s award of physical care to the mother. He also

claims the court erred in its disposition of the child’s uninsured medical

expenses. AFFIRMED AS MODIFIED AND REMANDED.



      Eric Borseth of Borseth Law Office, Altoona, for appellant.

      Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellee.



      Heard by Danilson, C.J., and Vogel and Bower, JJ.
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BOWER, J.

      Kyle Drysdale appeals from a district court ruling granting physical care to

Candice Abbott. He also appeals the order requiring him to pay the first $500 of

uninsured medical expenses. Candice requests appellate attorney fees. We find

the amount of uninsured medical expenses ordered is incorrect and remand for

entry of an appropriate order consistent with this opinion. We affirm the decision

of the district court concerning physical care and deny Candice’s request for

appellate attorney fees.

I.    BACKGROUND FACTS AND PROCEEDINGS

      Kyle Drysdale and Candice Abbott are the parents of one child, N.D., born

in 2006. Kyle and Candice were never married. Their romantic relationship

began in 2006 and ended in 2012.        Frequent breakups marked the couples’

tumultuous relationship. After the final breakup in 2012, the couple has been

unwilling to effectively communicate.

      We incorporate the district court’s background of the parties:

              Kyle is 27 years of age, and has never been married; N.D. is
      his only child. Candice is 26 years of age, and has also never been
      married; N.D. is her only child as well. . . . the parties agreed that
      paternity had never been established in Kyle for the child before the
      filing of this action. Kyle was not listed as the father on N.D.’s birth
      certificate, nor was there ever an affidavit of paternity prepared.
      However, the parties agree that Kyle should be established as
      N.D.’s father.
              The history of the parties to this case is an important factor
      for the Court in determining the proper resolution of the dispute
      presented here. Kyle was born and raised in Winterset, Iowa,
      graduating from high school there in 2004. Kyle testified that he
      moved out of his parents' home when he was 17, prior to
      graduating from high school, simply because he was ready to be on
      his own. He met Candice in the spring of 2005. At that point, she
      was still in high school and was 17. They moved in together in
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September 2005. At this point, Candice was 18, but was still in
high school. It was not long before Candice became pregnant; as
stated above, N.D. was born in June 2006.
        At the time Kyle and Candice began living together, they
were residing in Winterset. Kyle was working as a welder in
Winterset. In 2006 Kyle purchased a small home in St. Charles,
Iowa (which is near Winterset), and the parties moved there
together. Kyle continued to work in Winterset until April 2008 when
he took a better paying job as a welder in Des Moines, where he
continues to work at present. He currently earns $21.15 per hour.
Although he has earned overtime pay in the past, Kyle testified that
he currently receives little overtime. Kyle's basic work hours are
8:00 a.m. to 4:30 p.m., although he stated his employer is very
flexible with work hours to accommodate family needs. He further
testified that although health insurance is offered through his
employment, he is not covered by that insurance. Rather he stated
that he had obtained a separate health insurance plan through
Farm Bureau with Wellmark at a cost of $125 per month.
        In August 2012 Kyle purchased the home where he currently
resides, located in Des Moines, Iowa. At that point, Kyle, Candice
and N.D. were living together, and they all moved from St. Charles
to Des Moines. Kyle testified that the primary reasons for the move
were that he wanted to be closer to his employment and wanted to
live in a bigger city.      The move cut Kyle’s commute from
approximately 40 minutes to approximately 10 minutes. Kyle’s
home is located in the Saydel School District. N.D. attended school
in Saydel during the fall semester of 2012. The remainder of his
schooling has been in Winterset. No one resides at the Des
Moines address except Kyle and N.D., during the time he is with
Kyle.
        Candice currently resides in Winterset, Iowa. She lives in
the apartment with N.D., and has no other roommates. She is
currently employed as a bartender in Winterset; she has worked
there since February 14, 2013. Candice works Monday and
Tuesday from 12:00 p.m. to 6:00 p.m., alternate Wednesdays from
12:00 p.m. to 6:00 p.m. and Saturday and Sunday from 10:00 a.m.
to 6:00 p.m. She earns $7.50 per hour plus tips, and estimates her
earnings to be $10 to $12 per hour. Candice states that she gets
home at approximately 6:15 p.m. on the days she works, and that
N.D.’s bedtime at her home is 8:30 p.m.
        An order on temporary matters was entered February 25,
2013. According to the terms of that order, N.D. was to be with
Candice from Monday morning at 7:00 a.m. to Friday at 6:00 p.m.
The child was to be with Kyle from Friday evening at 6:00 p.m. to
Monday morning at 7:00 a.m. Because N.D. has been attending
school in Winterset, Kyle has elected to spend every Sunday
                                         4



       evening with his parents in Winterset. This has allowed the child to
       have weekly contact with his paternal grandparents, with whom the
       Court finds N.D. has a close relationship. In addition, it has allowed
       the child to return to his mother’s care on Monday morning at 7:00
       a.m. without having to arise at a very early hour.

       On November 25, 2013 the court entered a decree granting the parties

joint legal custody of N.D., with physical care given to Candice.         The court

created a visitation schedule substantially similar to the arrangement set out in

the February order. However, the court allowed Kyle a midweek visit from 5:30

p.m. to 7:30 p.m., and granted Candice visitation every third weekend. The court

also created a plan for summer and holiday visitation. Kyle was ordered to pay

$587.33 in monthly child support, to provide for N.D.’s health insurance at a cost

of $125 per month and pay the first $500 of any uninsured medical expense.

The court allowed Kyle to claim N.D. as a dependent for tax purposes if he

remained current on his other obligations. The court ordered Kyle to pay $3500

in attorney fees to Candice, and taxed two-thirds of the court costs to Kyle and

one-third to Candice.

       Kyle appeals the district court’s order granting physical care to Candice.

He claims the court erred in failing to consider various defects in Candice’s ability

to provide a stable environment for N.D. He believes he is in a better position to

support N.D. Additionally, Kyle claims the court erred in ordering him to pay the

first $500 in uninsured medical expenses. He seeks to lower his payment to

$250 and require Candice to contribute $250. Candice asks us to affirm the

district court and award her appellate attorney fees.
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II.    SCOPE OF REVIEW

       We review decisions on child custody de novo. In re Marriage of Hynick,

727 N.W.2d 575, 577 (Iowa 2007). We have a duty to examine the entire record

and adjudicate anew the rights on the issues properly presented. In re Marriage

of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Generally, we give

considerable deference to the district court's credibility determinations because

the court has a firsthand opportunity to hear the evidence and view the

witnesses. In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

III.   ANALYSIS.

       A.     Physical Care

       Kyle claims the court erred in granting physical care to Candice.          In

matters of child custody, the first and foremost consideration “is the best interest

of the child involved.” In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa

1983); see also Iowa R. App. P. 6.904(3)(o).         The Iowa Code provides a

nonexclusive list of factors to be considered in determining a custodial

arrangement that is in the best interest of a child. Iowa Code § 598.41(3) (2013);

In re Marriage of Hansen, 733 N.W.2d 683, 696 (Iowa 2007). We also look to the

non-exclusive considerations in In re Marriage of Winter, 223 N.W.2d 165, 166–

67 (Iowa 1974) (including the needs of the child, the characteristics of the

parents, the relationship between the child and each parent, and the stability and

wholesomeness of the proposed environment). The goal is to 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.” Iowa
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Code § 598.41(1)(a). We seek to place the child in the environment “most likely

to bring [the child] to health, both physically and mentally, and to social maturity.”

Hansen, 733 N.W.2d at 695.

       In seeking to overturn the court’s grant of physical care to Candice, Kyle

raises multiple assertions, most of which amount to personal attacks on

Candice’s character, and are irrelevant in assessing N.D.’s best interests. In

drawing our own conclusions, we evaluate the decision de novo while giving

appropriate deference to the court.

       The trial court partially relied on the findings of a court-appointed custody

evaluator in determining N.D.’s best interests. The evaluator assessed Kyle,

Candice, and N.D.      In her conclusions, the evaluator found Candice more

suitable as the primary physical custodian of N.D. due to her strong emotional

connection with N.D.     While the evaluator praised Kyle’s stable housing and

employment record, the evaluator noted a parent’s ability to attend to the

emotional and physical needs of the child carries more significance. The district

court agreed with the evaluator’s assessment. Moreover, the court noted its

“reservations about joint legal care.”    The court stated its disapproval of the

couples’ inability to communicate, and their tendency to speak ill of each other in

the presence of N.D. The court also expressed concern about the instances of

Kyle’s emotional and financial control over Candice. The court found Kyle used

his superior income status to control Candice’s activities and stated: “These are

classic symptoms of domestic abuse and controlling behaviors, and constitute a
                                         7



major warning flag.” The custody evaluator echoed this sentiment in her report.

The court did note no evidence of actual physical abuse had been alleged.

       Based on our de novo review of the record, we affirm the court’s award of

primary physical care to Candice.

       B.     Uninsured Medical Expenses

       Based on the income figures the district court ordered Kyle to pay the first

$500 of N.D.’s uninsured medical expenses. Once the $500 is satisfied, the

parents will pay based on their respective incomes. Kyle takes issue with this

portion of the decree and claims the district court did not properly follow the child

support guidelines.

       The guidelines provide:

       Uncovered medical expenses means all medical expenses for the
       child(ren) not paid by insurance. . . . [T]he custodial parent shall
       pay the first $250 per year per child of uncovered medical
       expenses up to a maximum of $800 per year for all children.
       Uncovered medical expenses in excess of $250 per child or a
       maximum of $800 per year for all children shall be paid by the
       parents in proportion to their respective net incomes.

Iowa Ct. R. 9.12(5). Rule 9.12 provides the custodial parent “shall pay.” The

word “shall” imposes a duty. Iowa Code § 4.1(30)(a). The word “shall” does not

mean “may.” State v. Luckett, 387 N.W.2d 298, 301 (Iowa 1986). The district

court improperly ordered Kyle to pay the first $500 in uncovered medical

expenses. As the custodial parent, Candice is responsible for the first $250 in

uncovered medical expenses. Once the $250 is reached, the parents will pay “in

proportion to their respective net incomes.”
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C.     Appellate Attorney Fees

       Candice asks for appellate attorney fees. The right to recover attorney

fees does not exist at common law, and fees are not to be allowed absent “a

statute or agreement expressly authorizing it.” Van Sloun v. Agans Bros., Inc.,

778 N.W.2d 174, 182 (Iowa 2010). Iowa Code section 600B.26 gives this court

the discretion to award the prevailing party reasonable attorney fees.         The

decision to award appellate attorney fees rest in our discretion, and we will

consider “the needs of the party making the request, the ability of the other party

to pay, and whether the party making the request was obligated to defend the

trial court’s decision on appeal.” In re Fiscus, 819 N.W.2d 420, 425 (Iowa 2012).

We decline to award appellate attorney fees to Candice in this matter. The costs

of this action are assessed equally to the parties.

       AFFIRMED AS MODIFIED AND REMANDED.

       Vogel, J., concurs; Danilson, C.J., concurs specially.
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DANILSON, C.J. (concurring specially)

          I concur specially because, unlike the majority and the district court, I do

not believe Kyle’s evidence or arguments were overly critical of or an unfair

attack upon Candice’s character.           Kyle attempted to distinguish himself from

Candice as a better caretaker for their minor child by showing his stability and

Candice’s instability.

          Stability of each parent remains a factor in determining which parent can

provide the “long range best interest of the [child].” See Winter, 223 N.W. 2d at

166-167.       Our supreme court cited Winter in stating, “Although Iowa Code

section 598.41(3) does not directly apply to physical care decisions, we have

held that the factors listed here as well as other facts and circumstances are

relevant in determining whether joint physical care is in the best interest of the

child.”     Hansen, 733 N.W.2d at 697.             Our case law is also inundated with

references to a parent’s stability as it relates to stability of residence,

employment, support systems, relationships, caretaking, financial health, and

mental health.1

          Here, Candice had a history of poor stability of residence and

employment. Kyle contended Candice had fifteen residences and thirteen jobs

since 2005, and his contentions appear reasonably supported.                     Because a

parent’s stability is a factor in making a physical care decision, Candice’s many

residences and jobs were fair game for Kyle to address.                 He should not be

criticized for the extended discussion or presentation of such evidence. Rather


1
    Citations to all such case law would be so extensive as to be prohibitive.
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than describing Kyle as being highly critical of Candice, the district court and the

majority should have acknowledged Candice’s significant instability of residence

and employment and determined whether other factors outweighed her

instability.

        I concur with the majority’s ruling, but find the decision close. I conclude

that the factors weighing against Candice—including her suspect support

system—are outweighed by other factors, such as Kyle’s somewhat controlling

demeanor and Candice’s ability to provide better emotional support for the child.

I also note that a custody evaluator and the district court had the opportunity to

view the demeanor of the parents. See In re Marriage of Engler, 503 N.W.2d

623, 625 (Iowa 1993). (“The trial court had the parties before it and was able to

observe their demeanor and was in a better position than we are to evaluate

them as custodians.”).
