                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0454
                             Filed February 6, 2019


IN RE THE MARRIAGE OF BRIDGETT MARIE WOOD
AND CLINTON ANDREW WOOD

Upon the Petition of
BRIDGETT MARIE WOOD,
      Petitioner-Appellee,

And Concerning
CLINTON ANDREW WOOD, n/k/a CLINTON ANDREW LUNDEN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Andrew Chappell,

Judge.



      Clinton Lunden appeals the physical care, visitation, and child support

provisions of the decree dissolving his marriage to Bridgett Wood. AFFIRMED AS

MODIFIED.



      Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar

Rapids, for appellant.

      Crystal L. Usher of Nazette, Marner, Nathanson & Shea, LLP, Cedar

Rapids, for appellee.



      Heard by Tabor, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                           2


MAHAN, Senior Judge.

       Clinton Lunden appeals the physical care, visitation, and child support

provisions of the decree dissolving his marriage to Bridgett Wood. Upon our

review, we affirm as modified to provide Clinton additional visitation during the

summer.

I.     Background Facts and Proceedings

       Clinton and Bridgett married in 2009.1 They have two children together,

I.W. and F.W., born in 2011 and 2014. Clinton and Bridgett purchased a home in

Cedar Rapids in 2008, where they lived until they separated. Clinton shared

physical care of two children from a prior marriage, who also lived with them when

they were not with their mother.

       Clinton is thirty-eight years old. He has a degree in human services. He

worked for ASAC from 2008 to 2015. He has also worked as a journeyman

plumber and a custodian. He has some physical injuries relating to prior worker’s

compensation claims, and he has two pending worker’s compensation claims. He

has been unemployed since July 2016. He testified he has applied for disability

and was approved through vocational rehabilitation to be educated in a different

field. Clinton testified he receives financial assistance through monetary gifts from

a couple he refers to as his godparents.

       Bridgett is twenty-nine years old. She has degrees in criminal justice and

business management and a master’s degree in business administration. She

worked for the Linn County Auditor’s Office until 2016 and then at an appliance


1
 Pursuant to an affidavit executed in 2008, Clinton and Bridgett declared themselves to
be common law married in 2006.
                                            3


store in Iowa City. At the time of trial in August 2017, Bridgett testified she was

seeking different employment in order to receive better health insurance and

benefits and she was applying for jobs in the Iowa City, Cedar Rapids, and

Waterloo areas.

       The parties separated in late 2015, and Clinton moved from the family

home. Bridgett filed a petition for dissolution of marriage in November 2015. That

same day, she filed a petition for relief from domestic abuse, alleging physical

abuse and threats by Clinton. The district court entered a protective order by

consent agreement.2

       In January 2016, the district court entered an order on temporary matters,

ordering physical care of the children with Bridgett and visitation with Clinton

overnight every Tuesday and Thursday and every other weekend.3 The temporary

order found it “equitable to impute income to [Clinton] at the level he was earning

before becoming unemployed in September 2015” and ordered Clinton to pay child

support in the amount of $565.81 per month. Bridgett was ordered to continue to

maintain health insurance for the children.

       Bridgett remained in the marital home until September 2016, when the

home was foreclosed and she moved into an apartment.                  Bridgett began a

relationship with Brian, who was on parole for convictions of robbery and willful

injury stemming from an incident when he was nineteen years old. Brian testified




2
  At Bridgett’s request, the court extended the no-contact order for an additional year in
November 2016.
3
  The court ordered the weekend visitations to coincide with the weekends Clinton had his
other children.
                                          4


he had “grown up a lot” following the incident and his time in prison, and he stated

he no longer used drugs.

       Clinton moved in with his girlfriend Angela in Hiawatha in October 2016.

Angela also has no children. Both Clinton and Bridgett testified to the long term

plans of their respective relationships. Testimony presented from both parties’

witnesses indicated Brian and Angela were supportive and stable influences for

the parties’ children.

       Clinton, without consulting Bridgett, began services through Tanager Place

for I.W. Although Bridgett did not agree to the services, she participated. There

was no indication I.W. needed to continue attending therapy, and Bridgett was

concerned Clinton would also enlist services for F.W.

       Trial took place over three days in August 2017. The main issue before the

court was which party would receive physical care of the children. The court heard

testimony from Bridgett, Brian, two of the children’s previous daycare providers,

the parties’ former neighbor, Bridgett’s sister, Clinton, Angela, Clinton’s ex-wife,

Clinton’s ex-wife’s husband, two Tanager Place caseworkers, Clinton’s mother,

and Clinton’s godmother.

       At the time of trial, I.W. was five years old and just starting first grade; she

was described as smart, creative, loving, and caring. F.W. was two years old and

just starting preschool; he was described as bright, fun, and playful.

       In October 2017, before the court entered a decree, Clinton filed a motion

to reopen the record, alleging Bridgett had located employment in Waterloo and

intended to move there with the children.        The court allowed the parties to

supplement their trial testimony by affidavit to be heard on the issue of Bridgett’s
                                               5


new employment and relocation. Bridgett’s affidavit confirmed she had obtained

employment with the Black Hawk County Public Health Department, earning

$48,000 (an increase of approximately $12,000 per year) starting October 23.

Bridgett stated she would have “significant” benefits after sixty days of

employment, including health, dental, and vision insurance for herself and the

children. She further stated she had researched housing “in the Urbana area,” but

she was unable to find any three-bedroom apartments or homes in her price range;

instead, she planned to move into the home Brian had recently purchased in

Waterloo so they could share expenses. Bridgett stated she had enrolled F.W. in

daycare and I.W. in elementary school in Waterloo, to start at the beginning of the

next trimester. Bridgett acknowledged the move would result in the parties living

“47 minutes apart,” which was “30 minutes more” than they currently lived, but she

believed it was in the children’s best interests for her to accept the job due to the

increase in pay and because it was the only offer she had received after applying

for many different jobs.

          Clinton responded, essentially refuting Bridgett’s statements that she could

not find housing in Urbana and that the Black Hawk County job was the only one

available to her. He acknowledged he was behind on child support but stated he

pays “what I currently am able.”4 Clinton also stated he “offer[ed] to watch the

children,” but Bridgett “chose to incur daycare costs.”

          In December 2017, the district court entered its decree, ordering joint legal

custody of the children and physical care to Bridgett with liberal visitation to Clinton



4
    Bridgett testified as of July 25, 2017, Clinton owed $2233.34 in back child support.
                                            6


(“as agreed upon by the parties,” or if they could not agree, every Wednesday

overnight and every other weekend, Friday to Monday morning).                  The court

“imputed $11 per hour of fulltime income, for $22,500 annually” to Clinton, and

after giving credit for extraordinary visitation, ordered him to pay child support in

the amount of $432 per month. The court distributed the marital assets,5 and the

court ordered Clinton to pay $3800 of Bridgett’s attorney fees.

       Clinton filed a motion to modify, amend, or enlarge, which the district court

denied. Clinton appeals.

II.    Scope and Standard of Review

       We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483-84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa R.

App. P. 6.904(3)(g). “Precedent is of little value as our determination must depend

on the facts of the particular case.” In re Marriage of Fennelly, 737 N.W.2d 97,

100 (Iowa 2007) (citation omitted).

III.   Physical Care

       Clinton appeals the district court’s decision placing the children in Bridgett’s

physical care. At trial, both parents requested physical care, and Clinton requested

shared physical care only in the alternative.6 “Physical care” involves “the right


5
   The court noted the parties had both emerged from bankruptcy proceedings and
“[r]egarding personal property, . . . have very little to divide.” Property distribution
provisions of the decree are not at issue on appeal.
6
  The court must consider joint physical care if requested by either party, see Iowa Code
§ 598.41(5)(a) (2015). Although the district court observed, “One could interpret these
positions as an agreement that joint physical care is not appropriate for the parties,” the
court stated it would still consider joint physical care.
                                           7


and responsibility to maintain a home for minor child and provide for the routine

care of the child.” Iowa Code § 598.1(7). We consider a number of factors in

determining which parent should have physical care of a child. See id. § 598.41(3);

In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). 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.      Winter, 223 N.W.2d at 167.         “[T]he basic

framework for determining the best interest of the child” is well established. In re

Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007); see Iowa Code § 598.41.

“The 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.” Hansen, 733 N.W.2d at 695.

       Clinton contends he should be awarded physical care of the parties’

children. To support his contention, Clinton claims: “[t]he credibility determinations

of the district court do not hold up under this review”; “[t]he factors of continuity and

stability strongly weigh in favor of placement of [the children] with Clint”; he has

“always put the children first” whereas “Bridgett had other priorities”; “Bridgett does

not value Clint as a parent, and does not have any ability to support his relationship

with the children”; and “denying [the children] the ability to be together [with his

older children] is not in their best interests.” We address these contentions in turn.

       The district court’s decree included detailed findings of fact and credibility

determinations. Without reciting each of the court’s credibility determinations, we

observe the court found Clinton’s testimony “self-serving” and “not at all

convincing”; “When testifying, he made a constant habit of equivocating instead of
                                            8


providing direct, honest answers.” And although the district court acknowledged

“some of Bridgett’s testimony [about Clinton’s controlling actions] appeared to be

somewhat overstated,” the court concluded “it was still more convincing than

Clinton’s about these matters.” Moreover, the court found Bridgett’s testimony to

be corroborated by other witnesses.          Specifically, the court found Bridgett’s

testimony regarding a history of domestic violence by Clinton to be “largely

corroborat[ed]” by Clinton’s ex-wife,7 who Clinton called as a witness. The court

further found Bridgett’s testimony regarding Clinton’s controlling and angry actions

to be “corroborated” by Bridget’s sister, who the court observed to be “very credible

overall.” It is unclear why Clinton would choose to draw attention to the court’s

credibility determinations when the record clearly belies his contention. We give

the district court’s findings considerable weight. See In re Marriage of Vrban, 359

N.W.2d 420, 423 (Iowa 1984).

       “[S]tability and continuity of caregiving are important factors that must be

considered in custody and care decisions.” Hansen, 733 N.W.2d at 696. In

determining the best interests of the children, a parent’s ability to maintain stability

in a child’s life is significant. See id. The fact that I.W. and F.W. have changed

daycare providers is in part due to Bridgett’s change in employment; we cannot

fault Bridgett for the steps she took to secure employment that allows her to better

provide for the children, particularly given the circumstances of Clinton’s

unemployment. Change is a natural result of divorce, and it appears both parties




7
 Clinton’s ex-wife has a diagnosis of post-traumatic stress disorder relating from domestic
abuse from Clint “amongst many other things.” She also had a prior no contact order
against Clinton.
                                           9


have adapted to find more stability as they have established lives separate from

each other.

       Clinton and Bridgett both testified they were the primary caregivers for the

children, but the district court found, and we agree, that “the record supports a

finding that they likely divided parenting responsibilities relatively evenly given their

respective schedules over the course of the marriage.” The record in this case is

extensive and there is more than enough acrimony between these parties as a

result of these proceedings; we need not reiterate their views of the other’s

shortcomings. It is apparent both parties were greatly involved in the children’s

lives. The testimony at trial indicates the parties are both able to provide for the

children’s physical and emotional needs.

       “The parent awarded physical care is required to support the other parent’s

relationship with the child.” Id. at 700. The district court found “both parties have

severe communication issues and issues showing mutual respect.” And the court

observed Bridgett “could be somewhat more flexible in adjusting the children’s

schedule when possible.” But overall, we believe Bridgett is capable of working

with Clinton to co-parent the children effectively and working with Clinton to resolve

issues in the best interests of the children.

       Clinton also claims the court erred by separating I.W. and F.W. from their

half-siblings. We recognize there is a strong interest in keeping siblings together,

and this includes half-siblings. Yarolem v. Ledford, 529 N.W.2d 297, 298 (Iowa

Ct. App. 1994).     However, circumstances can arise which demonstrate that

separation is in the long-term best interest of the children. Id. In this case, we find,
                                              10


as did the district court, that the long-term interests of I.W. and F.W. in this case

are best served by being in the physical care of Bridgett rather than Clinton.

         The overriding concern is the best interests of the children. Iowa R. App.

P. 6.904(3)(o); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). We

conclude it is in the children’s best interests to be placed in the physical care of

Bridgett. Upon our de novo review of the record and the nonexclusive factors set

forth in section 598.41 and Iowa law, along with a careful study of the issues raised

by Clinton on appeal, we affirm the physical care decision made by the district

court.

IV.      Visitation

         Clinton requests increased visitation “[i]n the event the Court declines to

grant [him] physical care.” The district court afforded Clinton liberal visitation, 8

including every Wednesday overnight and every other weekend, Friday afternoon

to Monday morning, as well as two non-consecutive weeks during the summer.

Clinton’s proposal of two overnights every week is not feasible considering the

distance between the parties and the location of their school and daycare provider.

Moreover, as the district court noted, the parties are free to agree upon additional

visitation, and the court was “hopeful” “better flexibility will be forthcoming from

both parents” “once the specter of divorce has lifted.”

         Clinton also requests six weeks, rather than two weeks, of visitation during

the summer. We modify the decree to provide Clinton an additional two weeks of




8
  Clinton mistakenly states the district court “limited [his] contact with his children to four
nights every two weeks,” but the decree provides Clinton five nights every two weeks.
                                         11


visitation in the summer. We see nothing in the record to indicate that four weeks

of summer visitation is inconsistent with the best interests of the children.

V.     Imputation of Income to Clinton

       The district court calculated child support under the guidelines adopted by

the Iowa Supreme Court. See Iowa Ct. R. 9.2. The court used Bridgett’s annual

income of $48,000 and determined “some level of income should be imputed to

Clinton.” At trial, Clinton testified he worked for ASAC from 2008 to 2015, where

he “started out [at] like $15 an hour.”        Clinton testified he was currently

unemployed, seeking vocational rehabilitation, and had several worker’s

compensation claims pending. The district court found, “Given his education and

prior experience, but factoring his physical limitations, . . . Clinton should be

imputed $11 per hour of fulltime income, for $22,880 annually.”

       Clinton contends the court’s “deviation from the Child Support Guidelines

and imputation of income . . . is unjust, unfair, and unsupported by the record.”

Iowa Court Rule 9.11(4) allows a court to impute income to a parent “in appropriate

cases.” The rule identifies one appropriate case as a parent’s unemployment or

underemployment “without just cause.” Iowa Ct. R. 9.11(4). “One of the factors

we consider in determining if we will use a parent’s earning capacity, rather than a

parent’s actual earnings, in order to meet the needs of the children and do justice

between the parties is whether the parent’s inability to earn a greater income is

self-inflicted or voluntary.” In re Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa

2006). Here, the district court was “convinced that Clinton has the ability to work,”
                                            12


but he “has no employment and no good plan for securing it.” 9 Under these

circumstances, the court acted equitably in using an amount reflective of Clinton’s

earning capacity rather than his actual income. Cf. id. at 534.

VI.    Trial Attorney Fees

       Clinton contends the district court abused its discretion in ordering him to

pay $3800 of Bridgett’s trial attorney fees.10 Whether attorney fees should be

awarded depends on the parties’ respective abilities to pay. In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). In addition, the fees must be fair and

reasonable. In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). An award

of trial attorney fees rests in the sound discretion of the trial court and should not

be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of

Romanelli, 570 N.W.2d 761, 765 (Iowa 1997).

       Considering the district court’s fact findings regarding Clinton’s finances,

including but not limited to the monetary gifts and loans from his godparents,

removal of money from the parties’ joint bank account, and misrepresentations

about his worker’s compensation settlement, we do not believe the court abused

its discretion in ordering him to pay a portion of Bridgett’s attorney fees.

VII.   Appellate Attorney Fees

       Both parties seek an award of appellate attorney fees.                An award of

appellate attorney fees is not a matter of right but rests within this court’s discretion.

In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining


9
   The court further noted Clinton “owes significant back child support, despite being
ordered to pay a minimal amount.”
10
   The court specified, “Due to Clinton’s current financial situation, he shall make monthly
payments of no less than $100 on this obligation.”
                                       13


whether to award attorney fees, we 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 district court’s decision on appeal. Id. In

consideration of these factors, we decline to award either party attorney fees on

appeal. Costs on appeal are assessed equally between the parties.

      AFFIRMED AS MODIFIED.
