                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1741
                              Filed June 24, 2015


GARRETT JOSEPH CLAERHOUT,
    Plaintiff-Appellee,

vs.

KRISTI LYNN ANDERSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Gregory Hulse,

Judge.



      Kristi Anderson appeals from a district court award of physical care to the

child’s father. AFFIRMED AS MODIFIED.



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

      Tara M. Elcock of Elcock Law Firm, P.L.C., Indianola, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

      Kristi Anderson appeals a district court order placing physical care of her

child with the child’s biological father, Garrett Claerhout. She also challenges

several other aspects of the decree.

   I. Background Facts and Proceedings

      Anderson and Claerhout had an affair which resulted in the birth of a child.

During the pregnancy, Anderson essentially lived two lives, one with her husband

and the other with Claerhout. While both men suspected something was awry,

they chose to believe Anderson when she told one she was just friends with the

other and told the other she was not married.

      In the eighth month of Anderson’s pregnancy, Claerhout confronted her

about her marital status. Anderson told him she had been married but obtained

an annulment. At the same time, she told Claerhout she had miscarried. Both

statements were false.

      A devastated Claerhout sought and obtained eight days of bereavement

leave from his employer. His family cancelled a scheduled baby shower.

      A month later—just three days before the baby’s birth—Anderson called

Claerhout and told him the baby never died. She declined to disclose her plans

for the birth. When Claerhout asked to be at the delivery, she refused, stating he

would make the situation worse.

      Claerhout learned of the baby’s birth from one of his friends. Claerhout

called Anderson and asked to see the infant. Again, Anderson refused.

      Claerhout scheduled a paternity test. On the day of the test—five days

after the child’s birth—he held his child for the first time.    As the parents
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completed paperwork in connection with the test, Claerhout discovered the

person he believed to be Kristi Wellman was officially registered as Kristi

Anderson, and her registered address was Keokuk rather than the Des Moines

area, as he had been led to believe. He also discovered Anderson had given the

child her husband’s last name. When Claerhout asked Anderson about these

discrepancies, she again told him she had been married but the marriage was

annulled.

       Meanwhile, the paternity test confirmed Claerhout as the biological father

of the child. In completing additional paperwork for a pediatrician, Claerhout

surmised Anderson was indeed married and living with her husband in Keokuk.

       Claerhout petitioned to establish paternity, custody, child support, and

visitation. Six weeks after the child’s birth, the district court entered a temporary

order granting the parents temporary joint legal custody and week-to-week joint

physical care. The court also appointed a custody evaluator.

       In time, the parents deviated from the temporary order.             Because

Anderson was unemployed, Claerhout allowed her to care for the child at her

mother’s home in the Des Moines area on three days of his “physical care” week.

       Following trial, the district court entered a decree stating the parents would

continue to share care on a week-to-week basis until August 1, 2016, at which

time Claerhout would receive physical care and Anderson would exercise

visitation on the first three weekends of the month.       The court also granted

Claerhout the dependent tax exemption and ordered Anderson to pay Claerhout

$1500 towards his trial attorney’s fees.
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        Anderson filed a motion for expanded findings and conclusions pursuant

to Iowa Rule of Civil Procedure 1.904(2). The district court amended the decree

to provide that exchanges would take place either at Claerhout’s home if

Anderson was unemployed or in Batavia or Ottumwa—midway between the

parents’ homes—if Anderson was employed. Anderson appealed.

   II. Analysis

        A.    Physical Care
        “Physical care” is defined as the “right and responsibility to maintain a

home for the minor child and provide for the routine care of the child.” Iowa Code

§ 598.1(7). The overriding consideration in determining which parent shall have

physical care of a child is the best interests of the child. Lambert v. Everist, 418

N.W.2d 40, 42 (Iowa 1988); see also Iowa Code § 600B.40.

        Anderson contends the child’s best interests were not served by the

district court order granting Claerhout physical care. She suggests she was the

primary caretaker and points to the three “nearly eleven hour[ ]” days of care she

provided during Claerhout’s physical care weeks, in addition to her weeks of

care.

        Anderson’s offer to assist with care does not transform her into the

primary caregiver. While she may have spent more waking hours with the child

through Claerhout’s good will in letting her serve as daycare provider, both

parents shared physical care of their child for more than a year. In other words,

both fed, bathed, and attended to the child’s daily needs on a sustained basis,
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both nurtured the child, and both could take credit for the child’s achievement of

“developmental milestones.”1

          The factor tipping the scales in favor of Claerhout as physical caretaker

was Anderson’s dissembling. As the custody evaluator reported,

          My biggest concern in this evaluation is the mother’s history of lying
          about herself and people in her life in order to avoid dealing with
          difficult situations or for other reasons that promote her self-interest.
          In my opinion, her decision to say that [the child] was dead was the
          ultimate expression of interference in and lack of respect for the
          father-daughter relationship. It suggests that she has not been able
          to differentiate her personal wants or needs from the child’s best
          interest, and it shows a fundamental disrespect for [the child] prior
          to her birth. The mother’s apparent lack of awareness of the
          inappropriateness of this behavior leads me to doubt her ability to
          facilitate father-daughter contact if she were granted primary
          physical care of the child and if it were not convenient or
          comfortable for her to do so. For that reason, I recommend that
          [the child] be placed in the primary physical care of her father and
          spend weekends (Friday and Saturday overnights) in the care of
          her mother.

At trial, the evaluator testified, “I am concerned about . . . [Anderson’s] ability to

model for [the child] how you cope when things are not going exactly the way you

want them to without lying to people about them.”

          Anderson’s trial testimony did not dispel this concern. While she admitted

to acting rashly in feigning a miscarriage, she justified her action on the basis of

Claerhout’s emotional and angry confrontation about her marital status. When

asked why she waited three to four weeks to correct her assertion, she

responded, “if you want to make the best life that you can for everybody and for

your unborn child, you need to start with the truth, which is why I said she is still

alive.”

1
  Citing the parents’ care, the custody evaluator noted the child was “a fortunate little girl
in many respects.”
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         Notwithstanding Anderson’s new-found commitment to being “100 percent

honest with everybody,” she failed to retract her statements about the annulment

of her marriage. When asked about her difficulties with honesty, she stated she

“didn’t want to hurt [Claerhout’s] feelings” and she “likes to make people feel

good about themselves.” Anderson’s failure to fully apprehend the trauma she

caused made her less equipped than Claerhout to serve as primary caretaker of

the child. As Claerhout’s mother testified,

         “[Anderson] just doesn’t get it. I don’t think she has any clue how
         much she hurt [Claerhout]. I don’t know if she has a clue how
         much she has hurt all of us. . . . And so I am really worried about [ ]
         just raising [the child] to know the difference between right and
         wrong and to know that you have to treat people right. Just all the
         things you’re supposed to teach a child, because they do not know
         any of that stuff. You have to teach them to be compassionate for
         people. And I just don’t know she can do it.

On our de novo review, we concur in the district court’s decision to assign heavy

weight to Anderson’s history of untruthfulness.

         We also are troubled by Anderson’s views about Claerhout’s parenting

abilities. She testified, “I think that I am best for [the child] because I promote her

well-being.     I promote her development, every stage of development, so

creatively, physically, verbally, emotionally, whereas I do not think that she would

get that anywhere else.” (Emphasis added). She added, “I have an expectation

of how I see [the child] to grow up, and I see that being fulfilled when I am

primarily taking care of her. If [Claerhout] were primarily taking care of her, I do

not think those expectations would be met.” (Emphasis added). These views

raise doubts about her willingness to support Claerhout’s relationship with the

child.
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       We recognize Anderson communicated effectively with Claerhout while

the paternity action was pending. For example, she regularly texted him pictures

of the child, copied medical records for him, and held video chats when the child

was in her care. Anderson also facilitated some visitation with Claerhout before

the temporary custody order was entered and, after it was entered, exchanged

the child without incident. But her statements quoted above suggest she might

not be as conciliatory in the long-term.

       Claerhout, in contrast, while expressing understandable distrust of

Anderson, refused to disparage her and exhorted his family to do the same.

When asked why he should serve as primary caregiver, he acknowledged

Anderson was a good mother but echoed his own mother’s testimony concerning

the importance of teaching the child right from wrong.

       We agree with the district court that the child’s best interests were served

by granting Claerhout physical care of the child as of August 1, 2016.2

       B.     Dependent Exemption

       Anderson contends the district court should not have granted Claerhout

the dependent tax exemption. We disagree. Iowa Court Rule 9.6(5) states,

“[t]he custodial parent shall be assigned one additional dependent exemption for

each mutual child of the parents, unless a parent provides information that the

noncustodial parent has been allocated the dependent exemption for such child.”

Claerhout became the custodial parent and, as of the date of trial, was the only

employed parent who would benefit from the dependent tax exemption.

2
 We acknowledge the unusual circumstance of delaying the award of physical care until
August 1. 2016. However, the parties agreed to share care until the child reached the
age of preschool, and neither party raised the delay as an issue on appeal.
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Accordingly, we conclude the district court acted equitably in granting him the

exemption.

       C.     Transportation

       Anderson next takes issue with the district court’s decision to assign all

the transportation responsibilities to her unless she becomes employed. We

agree this provision is inequitable.

       Anderson’s unemployment is a factor weighing for rather than against

transportation assistance. While she may not have had employment-related time

constraints at the time of trial, she had home-related time constraints, which

made the three-hour commute as difficult for her as for Claerhout. Additionally,

she bore the entire cost of transportation despite the absence of an income

stream. Under these circumstances, we modify the transportation provision to

require—absent agreement of the parties—the exchanges of the child in Batavia

or Ottumwa whether or not Anderson is unemployed. See In re Marriage of

Bonnette, 492 N.W.2d 717, 722-23 (Iowa Ct. App. 1992); see In re Marriage of

O’Reagan, No. 08-0591, 2009 WL 606136, at *3 (Iowa Ct. App. Mar. 11, 2009)

(requiring transportation costs to be shared).

   III. Attorney Fees

       Anderson appeals the district court order requiring her to pay $1500

towards Claerhout’s trial attorney fees. An award is authorized to a prevailing

party. See Iowa Code § 600B.26 ("In a proceeding to determine custody or

visitation, or to modify a paternity, custody, or visitation order under this chapter,

the court may award the prevailing party reasonable attorney fees."). An award
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lies within the district court’s discretion. See Markey v. Carney, 705 N.W.2d 13,

25-26 (Iowa 2005).

       Claerhout prevailed after a lengthy hearing.          We discern no abuse of

discretion in the district court’s minimal attorney award.

       Both parents seek appellate attorney fees.               Again, an award is

discretionary.   In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

Given Anderson’s unemployment, we decline Claerhout’s request to have her

contribute to his appellate attorney fee obligation. Although Anderson partially

prevailed on appeal, we decline her request to have Claerhout contribute to her

attorney fee obligation because the issue on which she prevailed was not the

primary issue.

       We affirm the district decree as modified.

       AFFIRMED AS MODIFIED.
