                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1114
                              Filed March 8, 2017


IN RE THE MARRIAGE OF AMANDA JO WILSON
AND RYAN EUGENE WILSON

Upon the Petition of
AMANDA JO WILSON,
      Petitioner-Appellant,

And Concerning
RYAN EUGENE WILSON,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Poweshiek County, Lucy J.

Gamon, Judge.



      The mother appeals from the provisions of the district court’s dissolution

decree concerning her three minor children and spousal support. AFFIRMED

AS MODIFIED.



      John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for

appellant.

      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.



      Heard by Potterfield, P.J., and Doyle and Tabor, JJ.
                                          2


POTTERFIELD, Presiding Judge.

       Amanda Wilson appeals from the provisions of the district court’s

dissolution decree concerning her three minor children and spousal support.

Amanda challenges the court’s placement of the parties’ children in Ryan

Wilson’s physical care. She also challenges the denial of rehabilitative spousal

support. We affirm as modified.

I. Background Facts and Proceedings.

       Ryan and Amanda were married on January 26, 2006. At the time of trial,

Ryan was thirty-seven years old and Amanda was thirty.          They have three

children born of the marriage: C.M.W., who was ten at the time of trial; C.R.W.,

who was eight; and C.J.W., who was six. Amanda has a child from another

relationship who is not a part of this proceeding. On July 28, 2014, Amanda filed

a petition for dissolution of marriage.

       Prior to C.M.W.’s birth, Amanda worked at a retail establishment part-time.

She was forced to end her employment after she was put on bed rest during her

pregnancy with C.M.W. Following C.M.W.’s birth, Amanda worked as a stay-at-

home parent for the majority of the marriage. She was responsible for the care

of the children. Her role included keeping the children on a schedule, cleaning,

feeding the children, taking the children on vacation, attending school

conferences, and other child-rearing activities. Both parties acknowledge that

Amanda was successful in her role. In 2012, Amanda helped start a non-profit

organization where she eventually became a paid employee, but this role only

lasted for two years. At the time of trial, she worked as a part-time substitute

teacher in the Sigourney Community School District, where she now lives.
                                           3


       Ryan earned a technical degree and was subsequently hired as a

lineman. In 2008, he achieved journeyman status. His job required long hours

and frequent travel. It was not uncommon for him to travel for extended periods.

Ryan’s average earnings were approximately $104,000 annually. At the time of

trial, however, Ryan was laid off from his employment. He declined to search for

additional employment on the belief his employer would recall him. In the event

his former employer did not recall him, Ryan testified that he could find new

employment quickly. The district court imputed $90,000 of income for purposes

of child support.

       In July 2014, the parties’ relationship took an abrupt turn.           Amanda

decided to move herself and the children with her friend, Brandon Cundiff,1 to

Pennsylvania without giving any notice to Ryan. Amanda claims Ryan’s drinking

problem forced her to move. She testified that Ryan would drink to the point of

passing out on multiple occasions. Ryan disputes his drinking was so excessive.

Following Amanda’s move, Ryan obtained a temporary injunction requiring that

the children be returned to live at the marital home in Brooklyn, Iowa, and attend

school in their previous school district, BGM. Ryan then drove to Pennsylvania

to pick up the children. The situation caused the children to miss the first day of

school.




1
  The parties dispute the status of Amanda and Brandon’s relationship at the time of the
move. Amanda claims the relationship was platonic while Ryan claims they were
romantically involved. At the time of trial, Brandon and Amanda were engaged and had
a child together.
                                          4


       A temporary custody order entered on September 2, 2014,2 awarded

Ryan physical care of the three children. Ryan took a week off from work to

ensure the children were adjusting to the new arrangement. Ryan also arranged

the children’s care during work hours and ensured help for the children to

prepare for educational and extracurricular activities. According to testimony, the

children were thriving under Ryan’s physical care. On October 13, 2014, the

court entered a temporary visitation order establishing visitation rights for

Amanda, who remained in Pennsylvania.

       On or around February 1, 2015, Amanda suffered from a mental-health

issue that required a short hospital stay. Following the stay, she continued to

seek treatment for depression. Subsequent medical reports indicated that she

was “on a positive trajectory towards overall well-being” and did not require any

medication as of March 2015.3 These issues became the center of multiple

visitation disputes. In a motion to compel dated June 19, 2015, Amanda claimed

Ryan was denying visitation.        Ryan claimed he was concerned about the

children’s well-being under Amanda’s care, and he would comply with the

visitation requests on the condition Amanda disclosed her medical records. In its

June 24, 2015 ruling, the court ordered one week of visitation for Amanda and

required Amanda to disclose her medical records through a release.




2
  The temporary custody order also denied temporary-visitation rights to Amanda until
she moved back to Iowa or re-petitioned the court with a proposal specifying how the
children would travel from Iowa to Pennsylvania.
3
  A letter from Amanda’s physician assistant and counselor stated Amanda “does not
pose a threat to herself or anyone else [as of August 20, 2015]” and “she has been on a
positive trajectory towards overall well-being and her mood has been stable.”
                                         5


      On September 1, 2015, after over a year in Pennsylvania, Amanda

returned to Iowa with her current fiancé.4 On September 14, 2015, the court

modified the temporary order by increasing Amanda’s visitation time with the

children. Following the trial, the court awarded physical care to Ryan and denied

Amanda’s request for spousal support. The court also awarded an equalization

payment from Ryan to Amanda for $30,005.76 payable at $1000 per month until

paid in full, and Ryan must pay for $5000 of Amanda’s attorney fees at $500 per

month. Amanda appeals the physical care and spousal support provisions of the

decree. Amanda also seeks appellate attorney fees.

II. Standard of Review.

      We review cases tried in equity, such as dissolution cases, de novo. Iowa

R. App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84

(Iowa 2012).       We give weight to the factual findings of the district court,

especially when considering the credibility of witnesses, but we are not bound by

them. Iowa R. App. P. 6.904(3)(g). “Prior 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).

III. Discussion.

      a. Physical Care Determination.

      Amanda appeals the district court’s decision placing C.M.W., C.R.W., and

C.J.W. under Ryan’s physical care. At trial, both parents requested physical


4
  Amanda was pregnant upon her return to Iowa.    The child is not a part of these
proceedings.
                                         6


care. Amanda requested joint physical care in the alternative. “Physical care”

involves “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) (2014). “The

parent awarded physical care maintains the primary residence and has the right

to determine the myriad of details associated with routine living, including such

things as what clothes the children wear, when they go to bed, with whom they

associate or date, etc.” In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa

2007). The fundamental goal in determining physical care of a child in an action

for dissolution of marriage is to place the child in the care of the parent who will

likely accommodate the long-range best interests of the child. In re Marriage of

Winter, 223 N.W.2d 165, 167 (Iowa 1974).             “[T]he basic framework for

determining the best interest of the child” is well established. See Iowa Code

§ 598.41; Hansen, 733 N.W.2d at 696.         Generally, stability and continuity of

caregiving are important considerations. Hansen, 733 N.W.2d at 696. Finally,

“[t]he objective of a physical care determination is to place the children in the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” Id. at 695.

       When physical care is at issue in marriage dissolution cases, the district

court may grant the parents joint physical care or choose one parent to be the

physical caregiver of the children. In re Marriage of Hynick, 727 N.W.2d 575,

579 (Iowa 2007). “The critical question in deciding whether joint physical care is .

. . appropriate is whether the parties can communicate effectively on the myriad

of issues that arise daily in the routine care of a child.” Id. at 580. The court

considers the following factors in determining whether to grant joint physical care:
                                         7


(1) the historical care giving arrangement for the child between the parents, (2)

the ability of the spouses to communicate and show mutual respect, (3) the

degree of conflict between the spouses, and (4) the degree to which the parents

are in general agreement about their approach to parenting.           Hansen, 733

N.W.2d at 697–99; In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App.

2007). Not all factors are given equal consideration, and the weight of each

factor depends on the facts and circumstances of each case. In re Marriage of

Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). The primary consideration

for custody determinations is the best interests of the child. Iowa R. App. P.

6.904(3)(o).

      1.     Joint Physical Care. With the above in mind, we first determine

whether joint physical care is in the best interest of the children. Amanda argues

that joint physical care is proper because both parents are familiar with

caregiving duties and the parties are able to communicate regarding parenting

decisions.     Amanda also maintains the parents agree about their parenting

approach. Ryan contends joint physical care is not feasible due to the distance

between the parties’ homes.

      Under the first Hansen factor, both parents have assumed physical

caregiving duties at some point during the children’s lives. Amanda was the

physical caregiver for the majority of the time from each of the children’s birth to

2014. During that time, she took care of the children’s day-to-day needs while

Ryan worked. Amanda testified that she kept the children on a schedule, took

them to the park, did their laundry, cooked, and purchased groceries. She also

attended extracurricular activities, school events, and doctor’s appointments
                                        8


while Ryan was traveling for work. Ryan became the physical care parent in

2014 after Amanda moved to Pennsylvania.         At the time of trial, Ryan was

unemployed and involved with the children’s educational and extracurricular

activities. When Ryan was working, he arranged for a third party to help with the

children’s day-to-day needs. Testimony from the children’s teachers and multiple

progress reports indicated the children were prepared and successful in school.

Both Ryan and Amanda have demonstrated the ability to parent as the physical

caregiver.

      Under the second and third factors, the parties’ conflict has led to

challenging communications during the relationship. In fact, the district court

stated, “This case is unusually contentious, even for a child custody proceeding.”

Amanda made multiple decisions regarding the children’s wellbeing without

consulting Ryan. In 2014, she took the kids to Pennsylvania without notifying

Ryan. Upon her return to Iowa with a fiancé and child, she began religious

activities with the children without discussing the decision with Ryan. On the

other hand, Ryan removed the children from school and took them on an

extended vacation without discussing the details of the trip, or its effect on the

children’s education, with Amanda. Amanda also testified that Ryan provided

notice of the children’s medical appointments only a few hours before the

appointment time, which made it difficult for her to attend. However, when the

children’s schedule required flexibility, text communications illustrate Ryan and

Amanda’s ability to co-parent in an efficient and respectful manner. Both Ryan

and Amanda were also flexible with each other regarding visitations, including an

offer by Amanda to watch the children so Ryan would not have to miss work, and
                                         9


multiple offers to adjust visitation schedules.    While the record indicates the

parties’ communication was improving at the time of trial, there are still clear

signs of tension that would be problematic in a joint-physical-care arrangement.

       Under the final factor, the parties are in general agreement regarding their

parenting approach.     Both Ryan and Amanda strive for shared values that

encourage the development, well-being, and growth of their children.          These

values include an organized routine, participation in school, participation in

extracurricular activities, community, and a close relationship with the other

parent.

       With the above factors in mind, however, we believe joint physical care is

not in the best interests of the children.        Despite both parties’ caregiving

experience and a clear indication that the children are successful and well

prepared under either parent’s care, the strained communications and tension

between the parents does not support a joint-physical-care arrangement.

Furthermore, the physical distance between the parties’ residences is

unworkable. We cannot say it is in the best interest of the children to change or

alternate school districts in order to accommodate a joint-physical-care

arrangement. See In re Marriage of Swenka, 576 N.W.2d 615, 617 (Iowa Ct.

App. 1998) (“An attempt to provide equal physical care may be harmful and

disruptive by depriving children of a necessary sense of stability.”); see also In re

Marriage of Metcalf, No. 06-0324, 2006 WL 3018228, at *1 (Iowa Ct. App. Oct.

25, 2006) (“The current agreement of the parties-alternating weeks-is unworkable

when the parties reside in two different school districts with approximately an

hour drive in-between.”). Even assuming the children remain in the BGM school
                                          10


district, spending nearly ninety minutes per day in a car while they are under

Amanda’s care places unnecessary stress on the children.5 The children are

very active in sports, school, and other extracurricular activities. Ensuring the

children are on schedule is difficult enough when the parties live in the same

district, doing so from a town forty-five minutes away is not in their best interests.

       2. Physical Care. Because joint physical care is unworkable under the

present circumstance, we must determine which parent will be the physical

caregiver. Hansen, 733 N.W.2d at 690–91. In determining which physical care

arrangement is in the children’s best interest, we consider the factors set forth in

Iowa Code section 598.41(3). When a parent establishes a home with another

adult, the new adult’s background and relationship with the children is also an

important factor to consider. In re Marriage of Malloy, 687 N.W.2d 110, 113

(Iowa Ct. App. 2004).       Ultimately, our goal is to place the children in the

environment most likely to bring them to healthy physical, mental and social

maturity. Hansen, 733 N.W.2d at 696; In re Marriage of Murphy, 592 N.W.2d

681, 683 (Iowa 1999).

       The district court determined, “Ryan is the parent in whose home the

children are most likely to experience the structure and stability upon which their

future success depends.” The district court reasoned the children are settled in

their current home and school district under Ryan’s care and Amanda’s instability

is not in the children’s best interest. We agree.


5
  Amanda testified that she would move closer to the children if awarded joint physical
care in order to accommodate their needs. We decline to speculate what the best
interests of the children will be based on a hypothetical event. See In re Marriage of
Thielges, 623 N.W.2d 232, 237–38 (Iowa Ct. App. 2000).
                                         11


         Amanda    argues     Ryan’s   drinking   problem   creates   an   unstable

environment for the children precluding him from assuming the physical caregiver

role.   The record does reflect troubling incidents caused by Ryan’s alcohol

consumption prior to the parties’ separation. On multiple occasions, he drank to

excess. Ryan testified that he has not had an alcoholic drink since July 2014.

Amanda disputes this claim. We agree with the district court that Ryan’s drinking

has ceased or substantially decreased since taking over the physical caregiving

duties. At the time of trial, issues related to alcohol do not appear to affect his

parenting. The children are progressing well in school and testimony indicates

that the household is clean and organized.

        The record also reflects troubling incidents related to Amanda’s move in

July 2014 to Pennsylvania. Without any notice to Ryan, she took the children to

Pennsylvania. Ryan was required to seek a temporary injunction from the court

after Amanda refused to bring the children back to Iowa. The children returned

to Iowa only when Ryan travelled to pick them up in Pennsylvania. Amanda later

acknowledged that her decision was misguided, and she testified that mental-

health issues contributed to her actions. As of the trial date, doctor’s reports

reveal that Amanda has recovered from any mental-health issues she was

suffering from at the time.

        Despite Ryan and Amanda’s shortcomings, both have proven to be good

parents. Furthermore, there is no indication that Brandon, the mother’s fiancé,

would inhibit the children’s growth under Amanda’s care. The record indicates

that Brandon’s relationship with the children is positive and the children are

bonded with their new half sibling. The significant distinction between Ryan and
                                        12


Amanda’s physical care arrangement is the children’s current familiarity with the

schools, teachers, friends, and community in Brooklyn, Iowa.        Uprooting the

children by placing them in Amanda’s care would disturb the children’s already

stable environment, in which they are thriving. Under Ryan’s care, the children

are established in their school. They have relationships with teachers, friends,

and other caregivers.    They enjoy a wide variety of extracurricular activities.

Considering the best interests of the children, we agree with the district court,

Ryan will provide the physical care that is most likely to bring them to healthy

physical, mental, and social maturity. See Murphy, 592 N.W.2d at 683.

      3. Visitation. Amanda argues the court should have awarded four weeks

of summer visitation instead of three.       The record indicates that the parties

agreed to four weeks of summer visitation, not three. Ryan does not contest this

on appeal.    Consequently, we modify the decree to include four weeks of

summer visitation to Amanda.

      b. Spousal Support.

      Amanda appeals the provisions of the decree denying her spousal

support. She argues she is entitled to rehabilitative alimony to compensate her

for the periods she was out of the workforce caring for the children while Ryan

advanced his career.     Ryan argues an alimony award is improper because

Amanda’s fiancé supports her and Amanda failed to gain full-time employment or

enroll in classes since she returned to Iowa.

      Spousal support is not an absolute right; an award depends on the facts

and circumstances of the case. Schenkelberg, 824 N.W.2d at 486. Iowa Code

section 598.21A(1) provides the relevant factors in considering whether spousal
                                        13


support is appropriate, including (1) the length of marriage; (2) the age and

emotional and physical health of the parties; (3) the property distribution; (4) the

educational level of the parties at the time of marriage and when the dissolution

action is commenced; (5) the earning capacity of the party seeking alimony,

including educational background, training, employment skills, work experience,

and length of absence from the job market; and (6) the feasibility of the alimony-

seeking party to become self-supporting with a reasonably comparable standard

of living to that enjoyed during the marriage. See also Hansen, 733 N.W.2d at

704.

       Iowa law recognizes three forms of alimony: traditional, rehabilitative, and

reimbursement. In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004).

We are not required to award any one type of alimony and our focus is whether

the award is warranted based on the above listed factors, rather than the specific

category of spousal support. See In re Marriage of Becker, 756 N.W.2d 822, 827

(Iowa 2008) (“[T]here is nothing in our case law that requires us, or any other

court in this state, to award only one type of support.”). Rehabilitative alimony

has a distinctive purpose as it is recognized in Iowa. In re Marriage of Anliker,

694 N.W.2d 535, 540 (Iowa 2005). Rehabilitative alimony was “conceived as a

way of supporting an economically dependent spouse through a limited period of

re-education or retraining following divorce, thereby creating incentive and

opportunity for that spouse to become self-supporting.” Id. at 540–41 (citing In re

Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989)).

       Amanda has limited experience in the workplace, a large disparity in

income compared to Ryan’s, and no post-secondary education degrees.               In
                                         14


2006, she worked part-time at a retail establishment until she was put on bed rest

while she was pregnant with their first child. Although she did some in-home day

care, Amanda worked almost exclusively as a stay-at-home parent until she

started a non-profit entity in 2013. She made little the first year, but in 2014, her

income peaked when she earned $19,085 working for the non-profit. She no

longer works with the non-profit entity.        At trial, she testified she earns

approximately $8.90 per hour as a part-time substitute in the Sigourney

Community School District. In contrast, Ryan earned a technical degree and

became a journeyman lineman in 2008. Ryan’s career advancement—at least

partially—was made possible by Amanda’s support at home. Although Ryan was

on layoff from his employer at the time of trial, he expected to be rehired or

obtain new employment in the near future.

       Generally, a large discrepancy in income, an extended absence from the

workforce, and a need for additional education are facts supporting rehabilitative

alimony.     See In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998)

(“Compared with [the father’s] abilities and needs, [the mother’s] limited

educational background, lack of employment security and responsibility in taking

over   the    marital   home   were   not—without     alimony—sufficient    for   her

subsistence.”); see also In re Marriage of Rothfus, No. 13-1745, 2014 WL

2885340, at *1 (Iowa Ct. App. June 25, 2014). In Rothfus, for example, the

mother obtained some college credits and earned approximately $22,000 per

year during the marriage. 2014 WL 2885340, at *1. The parties were married for

ten years, and the mother stayed home for eight years while the father advanced

his career as a lineman earning approximately $68,000 per year. Id. at *4–5. A
                                          15


panel of our court modified the district court’s denial of spousal support and held

the mother was entitled to rehabilitative support for $1000 per month for a four-

year period to help her attain self-sufficiency. Id. at *6.

       For similar reasons we believe Amanda is entitled to a limited period of

spousal support. In making our determination, we are guided by the goal of

rehabilitative alimony—allowing the recipient to achieve self-sufficiency.    See

Smith, 573 N.W.2d at 926; Francis, 442 N.W.2d at 63. During the marriage,

Amanda was removed from the workforce while she raised three children. Her

employment was limited to one short-lived job and part-time retail experience. It

is likely she would need additional education, training, and employment in order

to become self-sufficient. She has taken steps to enroll in classes in order to

complete her degree.

       We are not convinced by Ryan’s argument that an award of spousal

support is precluded because her “[fiancé] provide[s] for all Amanda’s needs.” At

the same time, Ryan complains that Amanda is delinquent on child support. Our

courts have acknowledged that remarriage and cohabitation is not always an

appropriate triggering event for the termination of alimony because its purpose is

to establish self-sufficiency for the dependent spouse. See In re Marriage of

Wendell, 581 N.W.2d 197, 200 (Iowa Ct. App. 1998) (“Generally, whether

remarriage terminates alimony depends, primarily, on the purpose behind the

award of alimony. Rehabilitative and reimbursement alimony, for example, are

often unaffected by remarriage.”); see also Francis, 442 N.W.2d at 64

(“‘Reimbursement’ alimony . . . which is predicated upon economic sacrifices

made by one spouse during the marriage that directly enhance the future earning
                                         16


capacity of the other, should not be subject to modification or termination until full

compensation is achieved.”); In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa

Ct. App. 1999) (“[R]ehabilitative and reimbursement alimony are the types of

alimony we most often allow to continue after a recipient spouse's remarriage.”).

We believe the same rationale applies to the award of alimony where the

dependent spouse is receiving support from a cohabitant at the time of

dissolution. The purpose of spousal support in this situation is to help Amanda

attain self-sufficiency based on the discrepancy between the parties’ current

incomes and the support Amanda provided to advance Ryan’s career. Amanda’s

present reliance on Brandon does not change the support she gave to Ryan

during her marriage or her need for self-sufficiency. The instability associated

with cohabitation also supports a spousal award even when the cohabitant is

providing for the dependent spouse. While Brandon did testify that he financially

supports Amanda, the extent of Brandon’s support can change at any time. The

parties have no immediate plans to marry, Brandon’s income fluctuates, and he

has support obligations from other marriages, on one of which he is not current.

Amanda’s need to attain self-sufficiency is outweighed by any temporary support

provided by her cohabitant.

       In constructing the support award, we rely on Amanda’s contribution to

Ryan’s increased earning potential compared to Amanda’s earning potential.

Francis, 442 N.W.2d at 61; see also Iowa Code § 598.21A(1). We agree with the

district court that Ryan has the potential to earn approximately $90,000 per year.

Ryan’s earning capacity is largely attributable to his journeyman status, which

Amanda made possible by her support at home. While we acknowledge that
                                         17


Ryan is already paying $1500 a month to Amanda for property settlement and

attorney fees, his earning potential indicates he can afford to pay spousal support

for a limited period of time. Therefore, a spousal-support award of $1000 per

month for four years is equitable in this situation. The limited award is sufficient

to provide Amanda with the education and employment experience necessary to

attain self-sufficiency.

       c. Appellate Attorney Fees.

       Amanda asks the court to award her appellate attorney fees. Appellate

attorney fees are not a matter of right but rather rest in this court's discretion. In

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

whether to award attorney fees, 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.”

In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993).                Under these

circumstances, we award Amanda $2000 in appellate attorney fees.

IV. Conclusion.

       After a careful review of the record, we hold it is in the children’s best

interest to remain under Ryan’s physical care. The children are settled into their

current school district and home. We believe the tension between the parties is

too strained and the logistical difficulties posed by their geographical separation

are too great to maintain a joint-physical-care arrangement that would benefit the

children. We reverse the provisions of the order related to spousal support and

modify it to include $1000 per month for four years in rehabilitative spousal

support. We grant Amanda $2000 in appellate attorney fees.

       AFFIRMED AS MODIFIED.
