                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1073
                           Filed September 14, 2016


IN RE THE MARRIAGE OF CONSTANCE G. PAUSCHER
AND CURTIS R. PAUSCHER

Upon the Petition of
CONSTANCE G. PAUSCHER,
      Petitioner-Appellant,

And Concerning
CURTIS R. PAUSCHER,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Dustria A. Relph,

Judge.



       Constance Pauscher appeals the physical care, property valuation, and

property distribution provisions of the decree dissolving her marriage to Curtis

Pauscher. AFFIRMED AS MODIFIED AND REMANDED.



       Amanda L. Green of Nading Law Firm, Ankeny, for appellant.

       Alexandra D. Frazier of R.J. Hudson Law Firm, P.C., West Des Moines,

for appellee.




       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                        2


MULLINS, Judge.

        Constance Pauscher appeals the physical care, property valuation, and

property distribution provisions of the decree dissolving her marriage to Curtis

Pauscher. Constance argues the district court erred in granting physical care of

the parties’ minor children to Curtis, or in the alternative, erred in limiting her

visitation with the children. Constance further argues the district court erred in

valuing Curtis’s retirement account at the time of separation rather than at the

time of trial and erred in failing to award Constance a property settlement. We

affirm as modified and remand.

        I.    Background Facts and Proceedings

        Constance and Curtis were married in 2005.        They have three minor

children, born in 2006, 2008, and 2011. Constance is employed as a registered

nurse in Des Moines, where she works as a critical care nurse three evenings

per week making $46,000 per year. Constance obtained her associate’s degree

in nursing in 2008 and has numerous certifications. While attending school,

Constance also worked part-time and cared for the parties’ children. Curtis is

employed as a union journeyman pipe insulator and has worked for the same

union shop since before the parties were married. His earnings are $54,288 per

year.

        During the marriage, Constance was the primary caregiver for the

children.    Though Curtis currently works from 7:00 a.m. to 3:30 p.m., he

previously traveled as part of his job and sometimes would be out of town on
                                          3


assignment for months at a time.1         Prior to separating, the parties resided

together in Alleman.

       At trial, Constance testified to certain events during which Curtis was

physically and mentally abusive during the marriage and that, after the death of

his brother, Curtis started and continued to abuse alcohol. Constance’s father

also testified that Curtis’s anger and drinking intensified in the months and years

following his brother’s death.      He testified he saw Curtis intoxicated and

intervened in disputes between Curtis and Constance, although he never saw

Curtis commit acts of physical assault against Constance.          He also testified

Curtis confirmed to him the alleged incidents of abuse. Constance’s father also

testified—and Curtis and Constance confirmed—that Constance’s father often

served as a mediator in their marriage.

       Curtis denied any abuse ever occurred, saying “She is saying what

happened, but she is saying it the wrong way.” As an example, Curtis explained

that one alleged incident of abuse did include a verbal fight between Constance

and him, but there was never any physical violence on his part, rather Constance

had thrown a phone at him. Curtis also denied the alcoholism,2 but admitted he

“us[ed] alcohol as medicine” following his brother’s death in July 2006. Curtis

indicated the self-medication lasted for only a few months, and he got better after

engaging in counseling.     Constance claimed financial difficulties and Curtis’s



1
  Both Curtis and Constance agreed Curtis would take these long-distance assignments.
On one occasion, during a seven-to-eight month assignment, Curtis saw Constance and
the children approximately every other weekend. Normally, Constance brought the
children to him.
2
  When Curtis was twenty, he was charged with operating while intoxicated for which he
received a deferred judgment and successfully completed probation.
                                         4


alcoholism led to the divorce. Curtis blamed the couple’s financial problems on

Constance taking the full amount of maternity leave after the birth of each child

and being unable to keep her job while caring for the children when he was out of

town.

        In 2010, Constance and the eldest Pauscher child were involved in a

serious car accident. Constance suffered serious injuries from the accident, for

which she received a settlement of approximately $100,000, less attorney fees.

The settlement was spent during the marriage on various items including a

vacation, paying off Curtis’s truck, purchasing another vehicle, and making

mortgage payments.

        In June 2013, the parties separated, and the petition for dissolution of the

marriage was filed. Constance testified that, before leaving the marital home,

she first asked Curtis to stay with his father and stepmother but he refused. She

then moved out of the marital home with the children and into her parents’ home

in Slater. Constance was awarded temporary physical care of the children by

order regarding temporary matters on July 15, 2013. Constance and the children

then remained in Slater, where the children attended the local school district,

which was different from their school system in Alleman.

        The record reflects that, as the primary caregiver to the children,

Constance kept Curtis informed of the children’s activities and appointments

through a jointly-shared, on-line calendar. Curtis testified Constance sent him

emails about the children, she made sure he was on the schools’ weekly emails,

and he had access to the school information. Curtis stated Constance had done

a good job of keeping him informed of the children’s activities and events. During
                                        5


the separation, Constance allowed Curtis time with the children in addition to that

allocated under the temporary order.

      However, the communication between Curtis and Constance has been

strained and sometimes hostile. Part of the tension between the parties during

the separation arose from the baptism of their eldest child. While married, all of

the children received blessings from the church Constance attends. In 2014,

Constance allowed, over Curtis’s objections, the eldest child to choose to be

baptized. The parties agree the child was baptized at a time that conforms with

the standard practice of Constance’s church. Curtis attended the baptism.

      Both parties currently reside with their new significant others. Curtis lives

in Ankeny with his girlfriend and her two children in a home the girlfriend owns.

Constance lives in a rental home in Altoona with her fiancé, Jeffrey Glaspie.

Constance moved to Altoona in February 2015, at which time the school-aged

children changed school systems to the local school district.       Curtis did not

approve of moving the children mid-school year or before the divorce

proceedings were complete. At all times, the school-aged Pauscher children

have done well in school.

      Part of the tension between the parties, to which the district court gave

significant consideration, is Constance’s relationship with Glaspie. Curtis has

expressed his concerns about Glaspie to Constance, as Glaspie has picked the

children up from school and monitored the children on the nights Constance is

working.   Glaspie has three previous domestic abuse charges, occurring
                                           6


between 1993 and 2004.3 Glaspie is employed by an information technology

department and has five children. He and his ex-wife, Rhonda Connett, have

four children together.

       Connett has physical care of the children, and Glaspie has visitation.

Connett and Glaspie have a very contentious relationship, and, at the time of

trial, were seeking a modification of their divorce decree, with Glaspie seeking

contempt charges against Connett. Connett testified at trial about the domestic

abuse that allegedly occurred in their marriage and a suicide attempt by Glaspie,

the latter of which occurred in 2011.          She also testified that Constance and

Glaspie had befriended Connett’s current husband’s ex-wife and, through that

friendship, were causing issues.

       At the time of trial, Glaspie had assault charges pending against him, was

subject to a no-contact order with his twelve-year-old son, and had been placed

upon the child abuse registry for an incident occurring at the boy’s school.

Arising from this incident, Glaspie had a founded Iowa Department of Human

Services (DHS) claim for denial of critical care–failure to provide proper

supervision, which Glaspie was appealing. DHS did not confirm the charge of

physical abuse.4



3
  The record indicates Glaspie also had a theft charge.
4
  Limited record was made on this incident at trial. According to Constance’s testimony,
Glaspie had gone to his son’s school to pick him up. He could not find his son, and his
son was not answering his phone. When he found his son, he grounded him from his
basketball game the following day. Connett arrived and said Glaspie could not ground
their son. The boy went behind Connett and indicated he did not want to go with
Glaspie. Glaspie grabbed the boy by the arm to escort him toward the door. The boy
braced himself against the door, and Glaspie ran into him. The boy started throwing
elbows and kicked Glaspie in the groin; Glaspie then bear-hugged the boy in an attempt
to subdue his struggles.
                                         7


       At trial, evidence was also presented regarding a second alleged incident

between Glaspie and his twelve-year-old son that had been reported by Connett.

The accusations were investigated by DHS and the police. According to police

reports entered into evidence after the trial, dated April 10 and 14, 2015, both

DHS and the police believed Connett “exaggerated what [had] occurred . . . in an

attempt to get [Glaspie] into trouble in a criminal matter.” The police report stated

“[n]one of the injuries were consistent with the facts in th[e] case” and, instead,

the facts showed the injuries had been caused to try to get Glaspie arrested.

The police officer further noted Connett knew some of the injuries on the child

were caused by the child—or from other unrelated accidents—but did not share

this fact with the police. When investigating, DHS spoke with a treating physician

who contradicted the story provided by Connett. The police report indicates the

charge was “unfounded” and a “false report” and states “this case is closed.”

       After Glaspie became involved with Constance, Connett reached out to

Curtis and his girlfriend in October 2013.      At trial, Curtis admitted he knew

Connett did not have a good relationship with Glaspie and Constance; he had

become good friends with Connett; he spent time with Connett socially a couple

of times; and, though first denying his relationship with Connett could cause

issues with Constance, he later admitted he thinks his relationship with Connett

“adds fuel to the fire” regarding his disputes with Constance. Curtis testified he is

aware Connett has multiple founded DHS reports against her, but indicated he

might allow his children to be in her charge.

       Constance and Connett also have a contentious relationship. Constance

has been charged with harassment for a particularly inappropriate and offensive
                                          8


email she sent to Connett after being warned by the police not to contact

Connett. Constance has also brought her children along to custody exchanges

between Connett and Glaspie of their four children. In some of the exchanges,

Glaspie called the police for their intervention.

       At trial, Curtis also expressed concern about the way in which Constance

and Glaspie discipline the children and Constance’s past refusal to allow the

children to call him when in her care. Curtis’s step-sister also testified that she

disapproved of the discipline Constance used with the children while Constance

and Curtis were married but she had not seen Constance since the separation.

Constance’s father also testified to an incident where he believed Curtis was

aggressive toward one of the children while intoxicated.

       Trial commenced on April 1, 2015. On May 22, 2015, the district court

entered the decree of dissolution of marriage, awarding physical care to Curtis.

On June 1, 2015, Constance filed a motion for stay and motion to enlarge or

amend, the latter of which the district court denied without a hearing and the

former of which the Iowa Supreme Court denied on July 9, 2015. Constance

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
                                           9

depend upon the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (citation omitted).

       III.   Analysis5

              A.      Physical Care

       Where child custody and physical care are at issue in marriage dissolution

cases, the primary consideration is the best interests of the children. Iowa R.

App. P. 6.904(3)(o). We look to the factors listed in Iowa Code section 598.41(3)

(2013): (1) whether each parent would be a suitable custodian for the children;

(2) whether the psychological and emotional needs and development of the

children will suffer due to lack of active contact with and attention from both

parents; (3) whether the parents can communicate with each other regarding the

children’s needs; (4) whether both parents have actively cared for the children

before and since the separation; (5) whether each parent can support the other

parent’s relationship with the children; (6) whether the custody arrangement is in

accord with the children’s wishes or whether the children have strong opposition,

taking into consideration each child’s age and maturity; (7) whether one or both

the parents agree or are opposed to joint custody; (8) the geographic proximity of

the parents; (9) whether the safety of the children, other children, or other parent

will be jeopardized; (10) whether a history of domestic violence exists; and

(11) whether either parent has allowed a sex offender access to the children. We




5
 In his brief, Curtis alleges Constance failed to preserve error on the admissibility of
certain evidence. On appeal, Constance’s challenge is not to the admissibility of
evidence but the weight the district court granted that evidence; thus, error was
preserved.
                                          10

also look at the factors announced in In re Marriage of Winter, 223 N.W.2d 165,

166-67 (Iowa 1974):

              (1) The characteristics of each child, including age, maturity,
      mental and physical health.
              (2) The emotional, social, moral, material, and educational
      needs of the child.
              (3) The characteristics of each parent, including age,
      character, stability, mental and physical health.
              (4) The capacity and interest of each parent to provide for
      the emotional, social, moral, material, and educational needs of the
      child.
              (5) The interpersonal relationship between the child and
      each parent.
              (6) The interpersonal relationship between the child and its
      siblings.
              (7) The effect on the child of continuing or disrupting an
      existing custodial status.
              (8) The nature of each proposed environment, including its
      stability or wholesomeness.
              (9) The preference of the child, if the child is of sufficient age
      and maturity.
              (10) The report and recommendation of the attorney for the
      child or other independent investigator.
              (11) Available alternatives.
              (12) Any other relevant matter the evidence in a particular
      case may disclose.

      Also relevant to this decision are the factors of continuity, stability,

communication, and approximation. See In re Marriage of Hansen, 733 N.W.2d

683, 700 (Iowa 2007). Not all factors are given equal consideration, and the

weight attributed to each factor depends on the specific facts and circumstances

of each case. See In re Marriage of Williams, 589 N.W.2d 759, 761 (Iowa Ct.

App. 1998).

      At the conclusion of the trial, the district court told the parties:

      I do want both of you [Pauschers] to know, too, that this is going to
      be a very tough decision for me. This is not a slam-dunk for either
      one of you. This is really probably the most difficult custody case I
      have had yet. There are troubling things about this.
                                       11


      In its decree, the district court focused on the relationship Constance has

with Glaspie. See generally In re Marriage of Decker, 666 N.W.2d 175, 179

(Iowa Ct. App. 2003) (noting “if a parent seeks to establish a home with another

adult, that adult’s background and his or her relationship with the children

becomes a significant factor in a custody dispute”).    The court did not make

specific credibility findings, but the tone of the opinion in several locations

demonstrated a greater reliance on the testimony of Curtis and the evidence in

support of his contentions. The district court clearly held Constance primarily

responsible for the negative tone of communications between the parties

concerning the children but failed to consider the open communication Curtis

admitted Constance maintained regarding the children’s activities, schooling, and

appointments. The district court also did not believe Constance’s testimony that

Curtis is an angry person who abuses alcohol. The district court impliedly found

that Constance downplayed Glaspie’s history of troubling behaviors and violent

tendencies and overplayed allegations of Curtis’s abusive behaviors. The district

court was also concerned about Constance’s troubling relationship with Connett

and the fact Constance allowed the Pauscher children to be exposed to that

conflict, while implicitly blaming Constance for all the troubles associated with

that relationship. The court contrasted those facts with positive findings about

Curtis’s girlfriend, that she is a positive role model who has remained above the

fray of the conflict between Constance and Curtis, while ignoring the fact that

Curtis and his girlfriend had become friends with Connett—facts that clearly

fueled the flames of those problems.
                                        12


      The district court was also critical of Constance enrolling the children in a

different school district after the parties’ separation without having discussed it

with Curtis first. Our review of the record shows the petition for dissolution of

marriage was filed on June 13, 2013. Around that time, Constance asked Curtis

to move out of the house and live with his father and stepmother. He refused.

So, she moved with the children into her parents’ home in Slater. In July she

was awarded temporary physical care and enrolled the children in the local

school district where she and the children were living. We cannot find fault with

that decision. Also, Curtis admits she informed him where they were enrolled

and gave the school contact information for Curtis including his email address so

he had access to school information concerning the children.

      Aside from the analysis of the factor concerning Constance’s relationship

with Glaspie, and some references to communication, the decree does not

disclose analysis of the other factors we consider applicable. There are factual

findings that implicate those factors but provide no analysis or weighing as

between the parties. The court obviously did not like Constance or some of the

decisions she made. “Care must be taken, however, to distinguish between

likeability of the witness and credibility: credibility and likeability do not

necessarily correlate.” In re P.C., No. 16-0893, __ WL __, at *__ (Iowa Ct. App.

Aug. 17, 2016) (Mullins, J., specially concurring); see also Iowa Civ. Jury

Instructions 100.9. Ultimately, we “must decide in whose custody the long-range

best interest of the children will be better served.” In re Marriage of Weidner, 338

N.W.2d 351, 359 (Iowa 1983).
                                         13


       First, we note that, as the district court found, both parties are very

capable of caring for the day-to-day material needs of their children.          Both

parents are gainfully employed and trained in their respective fields. Each parent

is a suitable custodian, capable of providing for the emotional, social, moral,

material, and educational needs of the children.

       The record reflects that Constance has been, throughout the life of these

three children, their primary caregiver. See Hansen, 733 N.W.2d at 697 (noting

“the caregiving of parents in the post-divorce world should be in rough proportion

to that which predated the dissolution”). In marriage, Constance cared for the

children while Curtis was gone for months at a time on assignments earning

much-needed financial support for the family. During the prolonged separation

leading to this dissolution, Constance has had physical care, with Curtis actively

engaging in the visitation available to him.

       It is apparent from the testimony and evidence presented that the children

thrived while in Constance’s physical care. See id. (“[S]uccessful caregiving by

one spouse in the past is a strong predictor that future care of the children will be

of the same quality.”). The school-aged children continued to do well in school

and even received special honors from their school for their performances. The

concepts of continuity, stability and approximation from Hansen clearly favor

Constance. See id.; see also Iowa Code § 598.41(3)-(4); Winter, 223 N.W.2d at

166-67 (factors 2 and 4).

       At trial, Curtis admitted Constance had allowed him visits with the children

in excess of those allowed under the temporary order. Constance indicated that,

were she given physical care, she would ask the court to increase the amount of
                                          14


visitation Curtis was receiving with the children. Curtis initially indicated he would

recommend liberal visitation for Constance, but subsequently requested minimal

visitation based on Constance’s involvement with Glaspie.

        The record also reflects that, while in Constance’s care, the parties have

been able to successfully communicate about the children’s schedules and

activities. See In re Marriage of Clark, No. 12-2192, 2013 WL 3291834, at *4

(Iowa Ct. App. June 26, 2013) (“A significant factor in the physical care

determination is the ability of each parent to communicate effectively with the

other about the needs of their children.”). Constance created a calendar to keep

Curtis notified of all events, signed Curtis up to receive school communications,

and has generally kept Curtis apprised on matters concerning the children.

While    the   record   also   reflects   the   parties   have    had    contentious

communications—and the district court made findings clearly placing much of

that responsibility on Constance—this has not prevented the parties from

discussing the needs of their children. We determine communication as a factor

is neutral as between the parties.

        The record also reflects that both parties have engaged in behaviors that

have antagonized the situation between them. Constance has verbally engaged

Glaspie’s ex-wife, Connett, resulting in harassment charges against her. Post-

separation, Curtis and his girlfriend have created a friendship with Glaspie’s ex-

wife, which he admitted at trial “adds fuel to the fire” regarding his disputes with

Constance. Like the district court, we find Constance’s conflicts with Connett

disturbing, but question whether all the blame rests on Constance. And while we
                                        15


agree Constance should avoid allowing the children to witness the conflicts with

Connett, we do not consider that circumstance a deciding factor.

       At trial, Constance made certain allegations regarding Curtis’s physical

and emotional actions toward her. These allegations, based on their lack of

substantiation beyond Constance’s father’s testimony, were given little weight by

the district court.

       While we are cognizant of the district court’s concerns regarding Glaspie’s

past criminal record—including his three convictions for domestic abuse, which

are a decade to two decades old—we are concerned the district court seemingly

hinged the entire custody decision on Constance’s decision to have a

relationship with Glaspie. See generally Decker, 666 N.W.2d at 179 (finding “the

numerous charges [against the mother’s] companion . . . most of which are three

to five years old” did “not preclude [the mother] from receiving primary care”).

The record reflects a history of issues between Glaspie and his ex-wife, which

now involve their twelve-year-old child, but the record reveals no concerns

regarding Glaspie’s other children. More importantly, the record reflects that no

allegations have been made—and no investigations have been instituted—with

regard to the Pauscher children or Constance.

       While we understand the concerns voiced by Curtis concerning Glaspie’s

history, which were embraced by the district court, that is but one factor to be

considered. We do not find the record supports a determination there is such a

risk of harm to the Pauscher children as to outweigh the other factors that were

not addressed by the district court in its decree, including those of approximation,

continuity, and stability; the fact the children have thrived when in the mother’s
                                            16


physical care; the fact Constance has supported Curtis’s contact with the

children; and Curtis’s admission Constance ensures his access to information

regarding the children’s activities, schooling, and appointments.

       As we consider all the applicable factors for physical-care determinations

set forth by our legislature and in our case law, we disagree with the district

court’s conclusion and find the long-term best interests of the children are best

served by an award of physical care to Constance.

       When one party has been awarded physical care, the other parent should

receive visitation that assures the children “the opportunity for the maximum

continued physical and emotional contact with both parents.”                 Iowa Code

§ 598.41(1)(a). We must also balance the practicalities of day-to-day life. We

determine Curtis shall have visitation with the children every Tuesday from

4:30 p.m. to 8:00 p.m.; on Thursdays from 4:30 p.m. to 8:00 p.m. on weeks when

he does not have weekend visitation; and weekend visitation every other

weekend, starting on Thursday at 6 p.m. and ending on Sunday at 6 p.m. The

other visitation provisions remain as ordered by the district court.

               B.     Retirement Assets

       Constance contends the district court erred in valuing the parties’

retirement assets as of the date of separation.6 As a general rule, “[t]he value of

the assets . . . should be determined as of the date of trial.” In re Marriage of

Driscoll, 563 N.W.2d 640, 642 (Iowa Ct. App. 1997). The district court provided


6
 In his brief, Curtis alleges Constance failed to preserve error on this issue because she
did not raise it in her motion to enlarge or amend. This dispute was clearly before the
district court at the time of trial and was raised by Constance in her motion to enlarge or
amend. We find error was preserved.
                                           17


no explanation for its deviation from this rule, beyond noting that the parties did

not share expenses or financial planning during their separation and that the

parties have similar incomes. While “[t]here may be occasions when the trial

date is not appropriate to determine values,” id., this is not one of those

circumstances. We find the parties’ retirement assets should have been valued

as of the date of trial.

               C.      Property Distribution7

       Constance requests she be awarded $17,000 as a property settlement. In

matters of property distribution, we are guided by Iowa Code section 598.21.

The parties in a dissolution action “are entitled to a just and equitable share of

the property accumulated through their joint efforts.” In re Marriage of O’Rourke,

547 N.W.2d 864, 865 (Iowa Ct. App. 1996). Iowa law does not require an equal

division, but rather “what is fair and equitable in each circumstance.”            In re

Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001).

       At trial, the district court made the following distribution: Curtis was

awarded the marital home that was in foreclosure; each party was awarded his or

her own savings and checking account; each party was awarded the vehicle

registered in his or her individual name; each party was awarded the household

contents already in his or her possession, except Constance was given the

washer and dryer held by Curtis; the retirement assets were divided pursuant to

In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996); each party was




7
 Again, Curtis raises error preservation. Again, this matter was clearly disputed by the
parties at trial and resolved by the district court’s order. We find error was preserved.
                                          18


responsible for his or her own student loans; and each party was responsible for

whatever debt was held in his or her name.

         Constance claims the district court erred in its consideration of the

equitable distribution of the property.        First, she contends the district court

improperly concluded that, after the parties separated, “Curtis attempted to catch

up with the mortgage payments with no assistance from Constance, even though

she was living rent-free at her parents’ house.”           The record demonstrates

Constance left the marital home in July 2013, Curtis made partial payments until

February 2014, and Curtis ceased making any payments since that time. The

record does not address whether Constance paid rent while living with her

parents.     Regardless, the property is in foreclosure, and Curtis has been

assigned any debt or expense resulting from that foreclosure.

         Second, Constance notes Curtis sold certain marital assets without her

approval, despite an order to preserve assets. At trial, Curtis admitted he had

sold a refrigerator, a microwave, and a stove between December 2014 and

January 2015 without telling Constance, making approximately $250 on those

sales.     Curtis indicated he believed he could sell the property because

Constance had provided a list of the items she wanted from the marital property

and these items were not on the list. Curtis also sold a dishwasher he had

received during the marriage as a gift from his parents and the children’s swing

set for $75.8 While it is clear Curtis disposed of certain assets in violation of the


8
  Curtis also traded in a truck—the loan for which was paid off by Constance with the
money she received from her accident settlement—for a Buick Rainier in July 2015, after
the order to preserve assets was entered in June 2013. Curtis subsequently sold the
Buick Rainier for $3000, which he used to pay his counsel.
                                          19


order to preserve, Constance also received property from the marital home prior

to trial and has failed to provide any evidence of the value of those items. On the

record made by the parties, we are unable to determine if the division of the

assets was unequitable.

       Third, Constance contends she left the marriage with considerably more

debt than Curtis: Constance having approximately $10,000 in a car loan, $17,000

in potential unsubrogated medical debt, $60,000 in student loans, and $31,000 in

other debts; and Curtis having approximately $5000 in credit card debt, $9000 in

a car loan, and the mortgage in foreclosure. Again, beyond the medical debt

addressed below, Constance has failed to provide any demonstration of how the

debt could be more equitably distributed.

       In its order, the district court determined Constance was not entitled to any

reimbursement for the proceeds she received from an automobile accident, the

entirety of which was spent during the course of the marriage. While we agree

the proceeds were marital sums for which Constance should not receive

reimbursement, the parties agreed a possible subrogation claim remained and

the parties should each bear half of the cost of whatever claim is brought, if any.

We therefore modify the decree to provide that each party will bear half of any

subrogated amount from that automobile accident. The property distribution is

otherwise affirmed.

              D.      Appellate Attorney Fees

       Constance requests appellate attorney fees. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s sole discretion.” In re Marriage

of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In determining whether to award
                                        20


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.” Id. Having

considered these factors, we determine the parties shall pay their respective

attorney fees. Costs shall be assessed one-half to each party.

       IV.   Conclusion

       For the foregoing reasons, we conclude physical care should have been

placed with Constance. We modify the visitation schedule as set forth above.

We also modify the date for valuation of the parties’ retirement assets to the date

of trial. We further modify the decree to provide that each party will bear half of

any subrogated amount resulting from Constance’s 2010 automobile accident;

we do not otherwise disturb the property distribution.         We remand for a

determination of child support consistent with this opinion along with other related

financial support matters including, but not limited to, medical expenses and tax

returns.

       AFFIRMED AS MODIFIED AND REMANDED.
