                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0768
                            Filed January 25, 2017


IN RE THE MARRIAGE OF BENJAMIN RIGDON
AND ALICIA RIGDON

Upon the Petition of
BENJAMIN RIGDON,
      Petitioner-Appellee/Cross-Appellant,

And Concerning
ALICIA RIGDON,
      Respondent-Appellant/Cross-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



       The wife appeals from the physical-care provisions of the decree awarding

the husband physical care of their minor child. The husband cross-appeals from

the economic provisions of the decree excluding from the marital assets a

financial settlement the wife received during the marriage.     AFFIRMED ON

BOTH APPEALS



       Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des

Moines, for appellant.

       Mitchell L. Taylor and Joshua P. Schier of Cray Law Firm, P.L.C.,

Burlington, for appellee.

       Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

      Alicia Rigdon appeals from the physical-care provisions of the decree

awarding Benjamin Rigdon physical care of their minor child. Benjamin Rigdon

cross-appeals from the economic provisions of the decree and contends the

district court's division of assets was inequitable because the court refused to

divide the settlement funds Alicia received during the marriage.

   I. Background Facts and Proceedings

      On March 23, 2000, the parties were married in Missouri.        Alicia was

attending law school at the time of their marriage and graduated in 2001. Ben

also pursued his education during the marriage and obtained his B.A. in 2004.

Due to Alicia’s acceptance of a job, the parties moved to New London, Iowa in

2005. Their minor child, L.J.R., was born in 2009. Alicia resides in Loganville,

Georgia, and is employed as corporate counsel. Ben and L.J.R. reside in New

London, Iowa, on a farm where Ben raises cattle. Ben is employed as a quality

control engineer.   Throughout the marriage, the parties struggled with their

relationship. Alicia also accused Ben of verbal and physical abuse.

      In August 2014, Alicia accepted a job opportunity and moved to New

Jersey on her own. It is unclear from the record whether the parties agreed to

move to New Jersey together. Alicia testified that the ultimate goal was to have

Ben and L.J.R. join her in New Jersey. Although Ben visited Alicia in New Jersey

to help her find an apartment, he denied any agreement to move the family to

New Jersey permanently. Both parties acknowledge marital troubles during and

before Alicia’s move to New Jersey. Alicia visited Ben and L.J.R. frequently

during her time away.
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       A dispute between Alicia and her New Jersey employer resulted in Alicia’s

separation from her employment and a monetary settlement of $195,000. 1 In

September 2015, Alicia moved to Loganville, Georgia, where she began working

for her current employer.

       Both parents have shown a strong ability to care for L.J.R. For example,

Alicia was L.J.R.’s primary caregiver before her move, and Ben overtook the

primary caregiving duties after Alicia’s move. Ben coaches the child’s soccer

team, volunteers at his school, and teaches L.J.R. about the day-to-day

agricultural activities at home. Alicia also stays active in L.J.R.’s life, even from

afar. She has flown back to Iowa to attend L.J.R.’s school events, participates in

conferences telephonically, and communicates with L.J.R. frequently.

       Despite the parties’ tenuous relationship, L.J.R. is thriving in his current

environment. He is energetic, inquisitive, and eager to learn at school. He also

enjoys working with the cattle at home.         L.J.R. has a permanent daytime

caregiver who has cared for him since birth.         The parties describe L.J.R.’s

connection with his caregiver as a grandparent-grandchild relationship.

       On June 22, 2015, Ben filed a petition to dissolve the marriage. Both

parties asked for physical care of L.J.R. and agreed on a visitation schedule for

the non-custodial parent. The geographical distance between the parties means

joint physical care is not an option. The parties also principally agreed on the

property distribution, except for the settlement funds Alicia received from her

New Jersey employer. On April 15, 2016, the district court issued a decree

1
 There is some disagreement in the record as to the gross amount of the settlement.
Responses ranged from $280,000–$298,500. However, the parties agree that the net
amount is $195,000 after all applicable withholdings.
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awarding Ben physical care of L.J.R.           The district court did not include the

settlement payment as marital property, awarded $12,322 net assets to Alicia,

$119,059 net assets to Ben, and a $53,368 equalization payment from Ben to

Alicia.

          Alicia appeals the court’s decision to award Ben physical care of the child.

Ben cross-appeals the court’s decision to set aside the settlement payment as

Alicia’s individual asset.

   II. Scope and 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

          Alicia appeals the district court’s decision placing L.J.R. under Ben’s

physical care. “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) (2015). “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
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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.

       Alicia maintains the district court should have awarded her physical care

of the child. She argues that Ben’s abusive behavior and lack of caregiving

experience precludes him from caring for L.J.R. We disagree.

       Alicia testified that Ben was abusive on several occasions. However, the

district court concluded:

       There was limited testimony about incidents where Ben was
       aggressive towards Alicia. On at least one occasion, Ben reports
       that Alicia slapped him. There is no evidence that there was a
       pattern of physical abuse in this family. Any incidents were
       isolated, if they did occur. The court cannot find compelling
       evidence that there was a pattern of domestic abuse in this
       relationship. This, of course, would be other than the emotional
       abuse that Ben and Alicia perpetrated upon each other during the
       entire course of their marriage.

To the extent that any abuse occurred, it was not enough to dissuade Alicia from

leaving the child with Ben for an extended period after she moved from Iowa to

New Jersey. See In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997)
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(holding that isolated, minor incidents do not automatically establish a history of

domestic abuse). We agree with the district court that Alicia’s testimony was

insufficient to establish a history of domestic violence.

       Alicia also argues that she has more caregiving experience than Ben.

She testified that prior to leaving Iowa, she was responsible for the majority of

L.J.R.’s care. Even after Alicia left Iowa, she continued to participate in L.J.R.’s

school conferences, activities, and visited L.J.R. frequently.      Ben also has

experience caring for L.J.R. Ben took over the primary caregiving activities after

Alicia moved. He coaches L.J.R.’s soccer team, volunteers at the child’s school,

and teaches L.J.R. how to care for the cattle.          Indeed, both parents have

supported, cared, and loved L.J.R., even with their marital shortcomings.

       L.J.R.’s teacher testified that L.J.R. is thriving in school. She stated that

he is energetic, inquisitive, and enjoys learning. Furthermore, L.J.R. and his

daytime caregiver have developed a lasting, healthy relationship. She has cared

for him since he was born, and the parties describe her as a “grandparent.” At

Alicia’s residence in Georgia, L.J.R. has no relationships with caregivers, no

experience with the school system, and no friends. Awarding physical care to

Alicia would disrupt the foundation of L.J.R.’s support structure, namely his

school, friends, caregiver, and familiar environment. As a result, we hold that

placing L.J.R. in Ben’s physical care will provide L.J.R. with the stability and

continuity vital to L.J.R.’s health and long-term maturity.
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          B. Equitable Distribution: Settlement Proceeds

       Ben cross-appeals the district court’s decision to exclude Alicia’s

settlement from marital property subject to equitable distribution. Both parties

agree the settlement should be included as a marital asset but dispute the

distribution of the funds. Ben argues the settlement proceeds are not related to a

personal-injury claim and should be treated as a severance package and divided

amongst the parties. Alicia argues the settlement compensates her for a personal

injury unrelated to Ben and she should retain the settlement in its entirety. We

agree Alicia should retain the entire settlement.

       In Iowa, we “divide the property of the parties at the time of divorce,

except any property excluded from the divisible estate as separate property, in

an equitable manner in light of the particular circumstances of the parties.” In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005); see Iowa Code

§ 598.21(5).   Separate property excluded from the estate includes “[p]roperty

inherited by either party or gifts received by either party prior to or during the

course of the marriage.” Iowa Code § 598.21(6); see also Schriner, 695 N.W.2d

at 496. Thus, we engage in a two-step process to distribute the estate equitably:

first, we must determine the type of property subject to division; and second, we

must divide the property in an equitable manner based on the statutory factors.

Schriner, 695 N.W.2d at 499.

       Under the first step, we rely on the statutory framework of the Iowa Code

to determine the type of property subject to division. Settlement proceeds are

not listed within the statutory exceptions to marital property. See Iowa Code

§ 598.21(6). As the Schriner court discussed:
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      If our legislature had wanted to exclude [an asset class] from
      divisible property, we think it would have included the benefits in
      the list of exceptions along with inherited and gifted property. . . .
      Because the legislature expressly excluded two items of property
      from equitable distribution, we can infer that it intended all other
      property to be equitably distributed.

695 N.W.2d at 497–98 (citation omitted); see also Iowa Code § 598.21(6).

Furthermore, the Iowa Supreme Court determined that proceeds of a personal-

injury claim are marital assets. In re Marriage of McNerney, 417 N.W.2d 205,

206, 208 (Iowa 1987). Alicia’s settlement proceeds were received on or around

August 28, 2008, before the dissolution of marriage. Under the relevant statute,

settlement proceeds are not excluded from the marital assets. Iowa Code

§ 598.21(5)-(6). We hold, and the parties concede, that the marital assets include

the settlement proceeds.

      Next, we are required to divide the property in an equitable manner based

on the statutory factors.   See Schriner, 695 N.W.2d at 496.        “An equitable

distribution does not mean an equal division.” Id. at 499. The Iowa Supreme

Court noted the importance of a flexible approach that allows the court to

consider multiple factors and the specific circumstances of each case when

executing an equitable distribution. McNerney, 417 N.W.2d at 206.

      In In re Marriage of Plasencia, for example, the husband suffered a

permanent disability and sought compensation through a personal injury claim.

541 N.W.2d 923, 926 (Iowa Ct. App. 1995). The district court awarded the non-

injured spouse a portion of any disability recovery. Id. A panel of our court

modified the decree excluding the non-injured spouse from recovering any

portion of the husband’s claim, holding, “[The husband’s] claim is for injuries he
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sustained and should be his claim.” Id. On the other hand, in McNerney, both

spouses were parties to a personal injury settlement. 417 N.W.2d at 208. While

there was little evidence as to the exact allocation of damages to each party, the

Iowa Supreme Court upheld the district court’s decision to divide the proceeds

between the parties as part of the equitable distribution because they were both

involved in the dispute. Id.

       With the above in mind, we believe Plasensia is more closely aligned with

the facts of this case than McNerney. Like the Plasensia settlement, the current

proceeds compensated Alicia for an individual, isolated injury that did not involve

the other spouse. Furthermore, Alicia received the settlement from her New

Jersey employer nearly two months after the divorce petition was filed, while she

lived far removed from the family household. A portion of the funds were used to

pay for joint credit cards, Ben’s expenses, a trip for L.J.R., childcare expenses,2

and expenses for the cattle operation—which was eventually assigned as an

asset to Alicia in the decree. To the extent that Alicia used these funds to pay

joint marital liabilities, it was to Ben’s advantage. Accordingly, we hold that it is

equitable to distribute the assets so that Alicia retains the remainder of the

settlement proceeds. We modify the characterization of the property distribution

to include the $195,000 net settlement payment as a marital asset, but we affirm

its set-off to Alicia and the equalization payment of $53,368 from Ben to Alicia.




2
 Alicia testified that she paid Ben approximately $2000 per month prior to the temporary
child support order.
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          C. Attorney Fees

       Both parties ask the court to award them 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 decline to award either party appellate attorney fees.

   IV. Conclusion

       After a careful review of the record, we find it is in the best interest of

L.J.R. to remain under Ben’s physical care.           Additionally, we include the

settlement proceeds as a marital asset, but we affirm the distribution of assets so

that Alicia retains the settlement in its entirety. As a result, we affirm the district

court’s equitable distribution so that the equalization payment remains

unchanged; Ben shall pay Alicia an equalization payment of $53,368.                We

decline to award either party appellate attorney fees.

       AFFIRMED ON BOTH APPEALS
