                  IN THE COURT OF APPEALS OF IOWA

                                 No. 16-1527
                              Filed July 6, 2017


IN RE THE MARRIAGE OF TERRENCE J. WILLIAMS
AND TAMMY M. WILLIAMS

Upon the Petition of
TERRENCE J. WILLIAMS,
      Petitioner-Appellee,

And Concerning
TAMMY M. WILLIAMS,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Palo Alto County, Don E. Courtney,

Judge.



      A mother appeals the court’s modification order awarding her former

husband physical care of their daughter. AFFIRMED.



      Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

      Terrence J. Williams, Ruthven, self-represented appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       Tammy Williams appeals a district court order placing physical care of

their now seven-year-old daughter, A.N.W., with her former husband, Terrence

Williams. Neither party disputes a substantial change in circumstances warrants

modification of the dissolution decree. The question before us is whether Tammy

or Terrence can better tend to the child’s needs. The answer is a close call. As

the district court observed, “both parents love this child and are equally qualified

to care for this child.” Like the district court, we conclude the tipping point is the

likelihood Terrence will be the more effective parent when it comes to fostering a

positive relationship between A.N.W. and the parent who is not awarded physical

care. Accordingly, we affirm the modification order.

       I.     Facts and Prior Proceedings

       Tammy and Terrence married in 2007. Their daughter A.N.W. was born in

2009. They divorced in 2011. At the time of the divorce, the family lived in

Minnesota. The Minnesota decree granted the parties joint legal custody and

granted Tammy “sole physical custody and residence” of A.N.W. Tammy was

A.N.W.’s primary caregiver for the next nearly four years.

       Terrence moved to Iowa after the divorce. In January 2015, Terrence filed

a petition for custody modification, asserting joint physical care was a viable

option because Tammy had also relocated to Iowa and lived in close proximity to

Terrence.   In July 2015, the parties entered an agreement to share care of

A.N.W. because they lived across the street from one another in Graettinger,

Iowa. The stipulation included this provision: “If either party moves out of the

Graettinger/Terril School district, this shall be the basis for modification of
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custody due to the inability to continue joint physical care.” The district court

entered an order approving the stipulated modification.

        Three months later, on October 1, 2015, Tammy filed a petition to modify,

alleging Terrence moved away from Graettinger within days of the court’s

approval of the modification. Both parties testified at a June 2016 hearing on the

modification request.     According to the evidence, both parents had steady

employment. Tammy worked at a nursing home in Emmetsburg. Terrence also

worked in Emmetsburg at a swine farrow-to-finish operation.

        Tammy testified, soon after the stipulation was entered, Terrence moved

to Ruthven, which she alleged was not located in the Graettinger-Terril

Community School District. She also testified she had since moved to Fenton,

where    she   lived   with   her fiancé.       Under cross-examination, Tammy

acknowledged her fiancé had spent time in prison on a theft conviction. Tammy

also testified regarding the parties’ conflict, which sometimes escalated into

physical confrontations. Tammy admitted being charged with domestic-abuse

assault in January 2015 as a result of a fight with Terrence.       Tammy also

obtained protective orders based on abuse by Terrence toward her. Under the

protective order, Terrence was restricted to communicating with Tammy

concerning their daughter only by email. Terrence was arrested for violating that

restriction by sending Tammy a text message using a cell phone Tammy had

provided A.N.W.

        In further testimony, Tammy acknowledged she had A.N.W. baptized

without informing Terrence. When asked if Terrence had a right to know about

the baptism, she answered “yes and no.” She explained she was Lutheran and
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Terrence was Baptist but asserted he “didn’t show any interest” in having their

daughter baptized.     Similarly, Tammy testified she did not communicate with

Terrence before enrolling A.N.W. in the North Union School District, which serves

the town of Fenton. At the time of the modification trial, A.N.W. was about to

enter first grade. She had an individualized education plan (IEP) to address a

learning disability.   Tammy told the court she had taken steps to have their

daughter’s IEP transferred to her new school.

       For his part, Terrence testified to his active involvement in A.N.W.’s life,

including attending medical appointments and school conferences. He objected

to Tammy’s unilateral decision to have their daughter baptized. He also testified

A.N.W. had developed a close relationship with her two half-sisters, who are

being raised by Terrence. He testified, even after his move to Ruthven, A.N.W.

still attended school in Graettinger, which was only a fifteen-minute drive. He

testified Tammy knew he was planning to move to Ruthven and both parents

believed Ruthven was actually in the Graettinger-Terril district.1            Terrence

testified he believed it was in A.N.W.’s best interest to stay in the same school,

given her IEP for “special education.”

       In September 2016, the district court issued an order placing A.N.W. in the

physical care of Terrence and granting liberal visitation to Tammy. The court

was critical of Tammy’s decisions to enroll A.N.W. in a different school district

without consulting Terrence and to “baptize the child without consulting or inviting

Terrence.”    The court noted these decisions were contrary to Tammy’s


1
  During his testimony, Terrence pointed out the school district’s website indicates the
district serves Graettinger, Terril, Ruthven, and Ayrshire.
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“responsibility as a joint legal custodian of the child.”   The court also noted

Tammy had provided little information to the court about the suitability of her

fiancé as a stepparent. Finally, the court embraced testimony from Terrence that

A.N.W. had a close relationship with her half-siblings and would benefit from

living in the same household.

      Tammy appeals the court’s modification order.

      II.    Standard of Review

      Because petitions to modify the physical-care provisions of a divorce

decree lie in equity, our review is de novo. In re Marriage of Harris, 877 N.W.2d

434, 440 (Iowa 2016). Although we give weight to the district court’s factual

findings, especially on issues of credibility, ultimately we are not bound by them,

and we must make an independent determination of the facts in reaching our

legal conclusion. Id.

      III.   Analysis

      A. Modification of Physical Care

      A party seeking modification of a decree’s custody provisions has two

hurdles: (1) prove by a preponderance of the evidence a substantial change in

circumstances occurred after the decree was entered and (2) prove a superior

ability to minister to the needs of the child.   Id.   In this case, neither party

disputes the occurrence of a substantial change in circumstances. The only

question on appeal is whether Tammy or Terrence is better suited to minister to

A.N.W.’s needs.

      A non-exclusive list of factors for determining what custody arrangement is

in a child’s best interests is found in Iowa Code section 598.41(3) (2016), and in
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In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).           Especially

pertinent to our decision today are the following factors: the historic pattern of

caregiving, whether each parent can support the other parent’s relationship with

the child, the relationship between the child and her half-siblings, and whether a

history of domestic abuse exists.

      Tammy argues the district court should have decided she was the “more

suitable and steady caretaker” for A.N.W. In support, she points to her role as

the primary caregiver for almost four years following the couple’s divorce.

Tammy is correct that the Minnesota court decided she was the preferred

custodian in granting her physical care of A.N.W. in the original 2011 decree.

Tammy is also correct that she then provided the bulk of A.N.W.’s care in those

early years. But Tammy herself agreed to share care with Terrence when the

two lived in close proximity in Graettinger. As a result of that joint stipulation,

accepted by the Iowa court, both Tammy and Terrence are deemed “suitable to

be primary care parents.” See Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct.

App. 2002). Moreover, while the “approximation principle” focusing on historic

patterns of caregiving is an important factor in deciding physical care, other

circumstances may outweigh the value of that continuity. See In re Marriage of

Hansen, 733 N.W.2d 683, 695–97 (Iowa 2007).

      In this case, the district court placed greater weight on two other

circumstances: (1) Tammy’s failure to include Terrence in important decisions

about A.N.W.’s upbringing, including her religious affiliation and her future

schooling, and (2) the value of a close association between A.N.W. and her half-

sisters in Terrence’s care.    In our de novo review, we likewise find those
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circumstances to be compelling here. Fostering the long-term relationship with

the parent who does not have physical care is an important role of the physical-

care parent. See In re Marriage of Kleist, 538 N.W.2d 273, 277 (Iowa 1995).

The district court here was appropriately skeptical of Tammy’s ability to foster

A.N.W.’s relationship with Terrence, given Tammy’s tendency to exclude

Terrence when making crucial choices for their daughter. We concur with the

district court’s assessment that Terrence promises a greater ability to “effectively

assure the child the opportunity for maximum continuing physical and emotional

contact with the other parent.”

       In addition, Tammy downplays the importance of A.N.W’s relationship with

her half-sisters, arguing on appeal the only evidence of their closeness came

from Terrence’s testimony. We find the district court was entitled to accept that

assessment from their father, especially without any evidence in the record to the

contrary.   The district court was correct in expressing concern about the

separation of the sisters. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476,

480 (Iowa 1993) (applying principle siblings and half-siblings should be

separated only for compelling reasons in dissolution actions).

       Finally, Tammy attacks Terrence’s testimony at the modification hearing

as “dishonest” and contends the district court should have given more serious

consideration to the fact she obtained protective orders against him. We are not

persuaded on either point. The district court, at least implicitly, found Terrence to

be credible. We pay close attention to such findings. See In re Marriage of

Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (explaining the trial judge deciding a

dissolution case “is greatly helped in making a wise decision about the parties by
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listening to them and watching them in person”). Moreover, the district court

recognized the contentious nature of the parties’ relationship. Both Terrence and

Tammy made allegations of domestic abuse against the other. But the record

does not support a finding Terrence had engaged in a “history of domestic

abuse” against Tammy as contemplated by Iowa Code section 598.41(3)(j).

       After reviewing all of the relevant factors, we conclude placing A.N.W. in

her father’s physical care is in the child’s best interests.

       B. Visitation and Dependency Exemption

       In his appellee’s brief, Terrence raises two issues of his own, arguing the

district court erred in awarding Tammy visitation for all Christmas holidays and in

allowing Tammy to claim A.N.W. as a dependency exemption each year.

Because Terrence did not file a cross-appeal from the modification order, he can

have no greater relief than the relief awarded by the district court. See In re

Marriage of Novak, 220 N.W.2d 592, 598 (Iowa 1974). Although our review is de

novo, we can only review matters properly presented on appeal. See id. (“[T]he

principle of not allowing greater relief to appellee not appealing is applicable in

equity actions involving modification of a divorce decree.”).        We decline to

address his claims.

       C. Attorney Fees

       In a proceeding for the modification of a dissolution decree, “the court may

award attorney fees to the prevailing party in an amount deemed reasonable by

the court.”   Iowa Code § 598.36.        Terrence was the prevailing party on the

physical-care issue, but considering the parties’ relative incomes, the court

ordered the parties to pay their own attorney fees.            We find no abuse of
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discretion in the court’s ruling. See In re Marriage of Maher, 596 N.W.2d 561,

568 (Iowa 1999).

      Tammy also requests appellate attorney fees.        An award of appellate

attorney fees rests within our discretion. In re Marriage of Erickson, 553 N.W.2d

905, 908 (Iowa Ct. App. 1996). We consider the needs of the party making the

request, the ability of the other party to pay, and whether the party seeking fees

was obligated to defend the order on appeal. Id. Based on the foregoing, we

decline to award Tammy appellate attorney fees. Costs are assessed to Tammy.

      AFFIRMED.
