                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1442
                               Filed April 27, 2016



LINDSEY ANN DRAEGER,
     Petitioner-Appellant,

vs.

RYAN MATTHEW BARRICK,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Hardin County, James C. Ellefson,

Judge.



      Lindsey Draeger appeals the district court’s custody decree. AFFIRMED

AS MODIFIED AND REMANDED.




      Barry S. Kaplan of Kaplan & Frese, L.L.P., Marshalltown, for appellant.

      Tara L. Hofbauer and Andrew B. Howie of Hudson, Mallaney, Shindler &

Anderson, P.C., West Des Moines, for appellee.




      Heard by Vogel, P.J., Doyle, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, Senior Judge.

        Lindsey Draeger appeals the district court’s decree granting physical care

of the child, R.L.B., to Ryan Barrick. Lindsey requests the decree be modified to

establish joint physical care, or in the alternative, she requests R.L.B. be placed

in her physical care.    Ryan requests appellate attorney fees.      We find joint

physical care is in the best interests of the child and modify the decree’s

physical-care provision. We remand for the limited purpose of calculating child

support based on the modified physical-care arrangement. We decline Ryan’s

request for appellate attorney fees.

I.      BACKGROUND FACTS AND PROCEEDINGS

        Ryan and Lindsey began living together in July 2012, and R.L.B. was born

in early 2014. The parties were never married and eventually separated in July

2014.

        Lindsey currently resides at Fort Riley, Kansas, with her husband, Kyle

Draeger.    Lindsey’s education consists of a high school diploma and some

college, but no degree. She is the mother of four children and has physical care

of the two oldest children, who are nine and eight years old. Lindsey is originally

from Iowa, and her extended family resides near Ryan. Lindsey and Kyle were

married in September 2014. Kyle is the father of six children. Three of Kyle’s

children reside with the couple in Kansas. Kyle’s other children reside in Iowa.

Overall, Lindsey and Kyle provide care for six children, including R.L.B. and

Lindsey and Kyle’s newborn child. Lindsey has not worked outside the home

since her marriage to Kyle, and she provides daily care to the children. Lindsey
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testified the children get along well with each other, there are no discipline

issues, and they receive good marks for grades and attendance in school. Kyle

serves in the United States Army and works at Fort Riley. He was injured while

working in the spring of 2015 and expects to be “medically retired” by December

2015. He intends to attend Iowa State University in Ames (where he has been

admitted) or Drake University in Des Moines and plans on relocating the family to

the Ames/Des Moines area.

      Ryan currently resides in Alden, Iowa, at a residence he has owned since

R.L.B.’s birth. Ryan is not married and does not have any other children. He

served in the United States Navy for four years and was honorably discharged in

2005. His educational background consists of a high school diploma and an

associate’s degree.   Ryan works for a general contractor who is flexible in

allowing time off to accommodate Ryan’s care of R.L.B.       Ryan has received

positive reviews for his work. While at work, Ryan places R.L.B. in a daycare

near his work—Lindsey has no issues with the daycare provider. In 2011, Ryan

was convicted of two charges of operating while intoxicated, and his driver’s

license was suspended for a period.        Since, Ryan has not committed other

alcohol-related offenses, and he testified he does not drink alcohol when R.L.B.

is in his care. In June 2013, and while he was residing with Lindsey, Ryan was

charged with assault for striking an individual in the head after the individual

called Lindsey “some bad names.” Ryan has been diagnosed with depression,

which he regulates with medication. Ryan lives near his extended family, who he

described as “very supportive” of him and R.L.B.
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      In August 2014, Lindsey filed a petition for dissolution of marriage from

Ryan, claiming the two had a common law marriage.                This matter was

subsequently converted to a custody action when the parties jointly agreed there

was no common law marriage.          In December, the parties entered into a

stipulation concerning temporary physical care providing for joint legal custody of

R.L.B. and joint physical care. Ryan and Lindsey alternated physical care of

R.L.B. on a bi-weekly basis.     The stipulation set Cameron, Missouri as the

meeting point for the bi-weekly exchange. This location was a fair meeting point

between Lindsey’s residence at Fort Riley, Kansas, and Ryan’s residence in

Alden, Iowa. Based on the testimony at trial, the exchanges were done in a civil

manner, and there were minimal issues with the physical-care arrangement.

      A custody trial was held on July 15, 2015.         Both Ryan and Lindsey

testified, as well as Ryan’s girlfriend Laura Scott and Lindsey’s husband Kyle. In

the custody decree, the district court described the parties in the following

fashion:

             The petitioner, Lindsey Crawford/Draeger, was born in 1987
      and was 28 years old at the time of trial. . . . During her time in the
      courtroom, she was pleasant, polite and respectful, and appeared
      to be attempting to give direct and truthful testimony even when the
      subject matter was difficult. In those instances where the Court has
      not accepted her version of any particular events, the Court has
      generally done so out of concern for accuracy of her recollection
      and communication and not out of any doubts about her intention to
      be honest.
             ....
             The respondent, Ryan Matthew Barrick, is also 28 years old,
      one month older than the petitioner, and has never been married.
      R.L.B. is his only child. . . . As was true of Ms. Draeger, during his
      time in the courtroom, he was pleasant, polite and respectful, and
      appeared to be attempting to give direct and truthful testimony even
      when the subject matter was difficult. In those instances where the
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         Court has not accepted his version of any particular events, the
         Court has done so out of concern for accuracy of his recollection
         and communication and not out of any doubts about his intention to
         be honest.

         The court issued the custody decree on August 24, granting the parties

joint legal custody of R.L.B., with Ryan receiving physical care. Lindsey appeals

from this decree.

II.      STANDARD OF REVIEW

         Our review of child custody proceedings is de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the findings of

the district court; especially to the extent credibility determinations are involved.”

Id. Prior cases have little precedential value, and we must base our decision

primarily on the particular circumstances of the parties presently before us. In re

Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

III.     MERITS

         Lindsey claims the custody decree should be modified to grant her

physical care of R.L.B., or in the alternative, shared physical care. We analyze

both claims together.

         Our analysis of who should have physical care is the same whether the

parents are married or unmarried. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa

1988).     “Physical care issues are not to be resolved based upon perceived

fairness to the spouses, but primarily upon what is best for the child.” Hansen,

733 N.W.2d at 695. In determining physical care, our overriding consideration is

the child’s best interest. Id. at 696. The Iowa Supreme Court has articulated

several pertinent factors, including whether “both parents have historically
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contributed to physical care in roughly the same proportion,” the “ability of

spouses to communicate and show mutual respect,” and “the degree of conflict

between parents.”    Id. at 697–98; see also Iowa Code § 598.41(3) (2013).

Additionally, we consider “the degree to which the parents are in general

agreement about their approach to daily matters.” Hansen, 733 N.W.2d at 699.

For joint physical care to work, “the parents must generally be operating from the

same page on a wide variety of routine matters.” Id.

      As the district court recognized, Ryan and Lindsey are both competent

and loving parents who are sincere in their desire to care for R.L.B. Thus the

choice of physical care necessarily turns on narrow and limited grounds. In such

cases “stability and continuity of caregiving are important factors” and

“preservation of the greatest amount of stability possible is a desirable goal.” Id.

at 696–97. These factors favor a parent who was primarily responsible for the

physical care of the minor child. Id. In granting Ryan physical care, the district

court reasoned:

              This Court has given long and careful consideration to
      [Lindsey]’s request for primary physical care and to her alternative
      request for shared physical care, but finds that either such
      arrangement would not serve R.L.B.’s best interest. In reaching
      that conclusion, the Court has considered all of the factors
      described in In re Marriage of Hansen, . . . and Iowa Code
      § 598.41(3). Most of the considerations in section 598.41(3) point
      to joint legal custody. Each parent would be a suitable custodian.
      The psychological and emotional needs and development of the
      child would be better served by active contact with and attention
      from both parents. The parents can communicate with each other
      regarding the child’s needs. Both parents have actively cared for
      the child both before and since the separation. Each parent can
      support the other parent’s relationship with the child. In the case of
      [Ryan], this is reinforced by the fact that he has supported the
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      relationship between the child and [Lindsey]. The child is much too
      young to have any wishes that should be taken into consideration.
             Both parties favor joint legal custody. The contested issue
      relates only to physical care. [Lindsey] would prefer primary
      physical care but proposes shared physical care as an alternative.
      [Ryan] opposes shared physical care due to a legitimate concern
      about when and where [Lindsey] and her husband will establish
      their household in Iowa after Mr. Draeger’s discharge. As the Court
      has already said, it is likely that Mr. Draeger will pursue at least his
      undergraduate education at Iowa State or Drake and that he and
      [Lindsey] will make their home in the Ankeny vicinity. Shared
      physical care might work now, even more easily than it has worked
      under the temporary stipulation involving interstate exchanges, but
      when the child goes to school, it will not. It would be far too
      speculative to conclude that the Draegers and Mr. Barrick will live in
      the same school district or so closely that the child could attend
      school in a single place close to both parents.
             ....
             This court is called upon to decide this case now, and on the
      facts that exist so far. The respondent, Ryan Matthew Barrick, is
      the far more stable parent and is more likely to provide this child
      with a stable environment over the course of her childhood. The
      parties should have joint legal custody of their child, with primary
      physical care assigned to the respondent, Ryan Matthew Barrick.

      Upon our de novo review, we agree with much of the district court’s

analysis on Ryan and Lindsey’s suitability as caregivers to R.L.B.; however, we

disagree with the court’s decision to grant Ryan physical care. R.L.B.’s best

interests are served by granting Ryan and Lindsey joint physical care. According

to the record and the district court’s own conclusions, Lindsey and Ryan have

satisfied most of the Hansen and Iowa Code section 598.41 factors. Ryan and

Lindsey “have historically contributed to physical care [of R.L.B.] in roughly the

same proportion,” they show “mutual respect,” they agree on each other’s

approach to parenting, there is minimal conflict, and they agree on routine

matters. Hansen, 733 N.W.2d at 697–99; see also Iowa Code § 598.41(3).
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       The district court’s decision rests on its conclusion that Lindsey’s past

relationships and her current living situation demonstrate instability; in contrast,

Ryan has had fewer relationships and has remained at the same Iowa residence.

While the stability of a parent and geological proximity are relevant

considerations, they are not the most important considerations. By eliminating

the joint physical-care arrangement that, (according to both Ryan and Lindsey’s

testimony) had been going well, “stability and continuity of caregiving” for R.L.B.

has been disrupted.     See Hansen, 733 N.W.2d at 697–98.             Additionally, the

district court pointedly (and rightly) refused to make predictions about the two

families’ futures, but its desire to “avoid the need for change in the future” has

resulted in an outcome that has given less weight to the majority of the physical-

care factors.    While geographic proximity and the stability of Lindsey’s

relationship are important considerations, they are outweighed by all of the other

factors pointing to a joint physical-care arrangement.

       Given Ryan and Lindsey’s proven suitability as caregivers to R.L.B. we

decline Lindsey’s request for physical care, and we modify the physical care

provision of the custody decree to provide for joint physical care.

IV.    ATTORNEY FEES

       Ryan requests appellate attorney fees. An award of appellate attorney

fees is not a matter of right but rests within our discretion. Iowa Code § 600B.1;

Markey v. Carney, 705 N.W.2d 13, 25 (Iowa 2005). Given the circumstances in

this action, we decline to award Ryan appellate attorney fees.
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V.    CONCLUSION

      We find R.L.B.’s best interests are served by granting her parents joint

physical care; therefore, we modify the physical care provision of the custody

decree to provide for joint physical care. We remand for the limited purpose of

determining child support based on the new custody arrangement. We decline

Ryan’s request for appellate attorney fees. Costs of appeal are split equally

between the parties.

      AFFIRMED AS MODIFIED AND REMANDED.

      Doyle, J., concurs; Vogel, P.J., dissents.
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Vogel, Presiding Judge. (dissenting)

      I respectfully dissent because I would defer to the district court’s well-

reasoned opinion.    The district court heard the testimony of the parties and

carefully and thoughtfully reviewed the law. The case must be decided on the

facts that exist at the time of the hearing. At that time, Lindsey lived in Kansas

and Ryan lived in Iowa, and the child was almost eighteen months old. While

joint physical care may work at the present moment due to the child’s age, it will

not be long before the child will start attending preschool and elementary school.

At that point, it will be essential for the child to primarily reside in one school

district. While Lindsey alluded to possible plans to move to Iowa and live in the

Ankeny area, where her husband would attend school, even a move to Ankeny

would not be adequate for a joint physical care arrangement for R.L.B. Ryan

lives and works in Alden, an hour away from Ankeny. Ordering joint physical

care despite the geographical distance only necessitates a subsequent

modification action that will need to be filed as soon as R.L.B. begins attending

school. See, e.g., In re Marriage of Memmers, No. 03-0467, 2003 WL 21919794,

at *2 (Iowa Ct. App. Aug. 13, 2003) (noting the parties’ distance of seventy-five

miles and in different school district makes a joint physical care arrangement

unworkable once the child starts attending school); see also Iowa Code

§ 598.21D (providing a relocation of 150 miles or more by a parent with physical

care may be considered by the court to be a substantial change in circumstances

to justify modifying the physical care arrangement).
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       While the majority states the parties, “have satisfied most of the Hansen

and Iowa Code section 598.41 factors,” we note the court in Hansen clearly

stated no “iron clad formula” should be applied as “courts must consider the total

setting presented by each unique case” in making a determination as to the best

interests of the child. See In re Marriage of Hansen, 733 N.W.2d at 683, 699–

700 (Iowa 2007) (noting there are no exclusive factors or factors that will always

be determinative).    Here, the district court found it “far too speculative to

conclude that the Draegers and Mr. Barrick will live in the same school district or

so closely that the child could attend school in a single place close to both

parents.” I agree with that assessment. The distance between the parties at the

time of trial made long-term joint physical care unworkable. The district court

then determined Ryan was the far more stable parent; he was “more likely to

provide this child with a stable environment over the course of her childhood.”

Therefore, I would affirm the district court’s physical care determination.
