                   IN THE COURT OF APPEALS OF IOWA

                                 No. 15-1570
                          Filed September 14, 2016


IN RE THE MARRIAGE OF DANIEL JAMES COMSTOCK
AND JESSICA COMSTOCK

Upon the Petition of
DANIEL JAMES COMSTOCK,
      Petitioner-Appellant,

And Concerning
JESSICA COMSTOCK,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Page County, Richard H.

Davidson, Judge.



      Daniel Comstock appeals the physical-care and child-support provisions

of the decree dissolving his marriage to Jessica Comstock.     AFFIRMED AS

MODIFIED AND REMANDED.




      Jon H. Johnson and Whitney A. Free of Johnson Law, P.L.C., Sidney, for

appellant.

      Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellee.



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


MULLINS, Judge.

      Daniel Comstock appeals the physical-care and child-support provisions

of the decree dissolving his marriage to Jessica Comstock. Daniel argues the

district court erred in awarding physical care of the parties’ three minor children

to Jessica. He also asserts, should the physical-care decision be affirmed, the

district court erred in calculating his child-support obligation by basing it on his

earning capacity rather than his actual earnings. On our de novo review, we

affirm as modified and remand.

      I.     Background Facts and Proceedings

      Daniel and Jessica married in 2007. They have three children: T.C., born

in 2007; H.C., born in 2008; and J.C., born in 2011. The parties separated in

August 2014, when Daniel left the marital home and moved into his parents’

home with the parties’ three minor children. On August 28, Daniel filed a petition

for dissolution of marriage. On October 20, the district court entered a temporary

order awarding the parties joint legal and physical custody of their children,

alternating parenting time with the children on a weekly basis.

      In January 2015, Daniel discovered Jessica had plans to move to

Tennessee with her boyfriend, Ken, and the parties’ children and sought

modification of the temporary custody order. The court granted Daniel’s request

and awarded him physical care of the children. The order provided Jessica was

to have “reasonable visitation with the children upon written notice to Daniel on

condition the children remain in the state of Iowa.” Jessica and Ken moved to

Tennessee in February. Jessica gained employment in Tennessee in March,
                                         3


following which the court ordered her to pay $360 per month in temporary child

support to Daniel beginning in May. The matter came on for trial on July 1.

      At the time of trial, Daniel lived with his parents and the parties’ three

minor children in Shenandoah with plans to move back into the marital home. In

2014, Daniel attended college full-time online studying criminal justice.        He

considered himself to be a stay-at-home dad for four of the parties’ eight-year

marriage. From 2008 until 2011, Daniel did not work outside of the home. In

2011, Daniel started working for a private company and remained employed

there until 2013. Thereafter, Daniel worked intermittently for a temporary agency

and admitted he had quit two job assignments after only a matter of days

because he did not like the work. At the time of trial, Daniel had been employed

at one job assignment through the temporary agency for at least six months. By

the time of the September hearing, however, Daniel had been laid off.

      Shortly after the parties separated, Jessica moved out of the marital home

and into the home of Ken’s father. In November 2014, Jessica moved back into

the marital home with Ken.        In February 2015, she and Ken moved to

Tennessee, where they continued to reside together at the time of trial. Jessica

worked various jobs throughout the marriage and sometimes more than one job

at a time, in addition to starting full-time nursing school in 2014. In the past,

Jessica worked for a nonprofit agency that provided services to individuals with

disabilities and a residential treatment facility for at-risk youths with behavioral

issues.   At the time of trial in July, Jessica was working for a call center in

Tennessee. By the hearing in September, Jessica stated she was not working
                                          4


for the call center anymore but anticipated being rehired there after the

dissolution proceedings were finalized.

      Jessica testified Daniel’s choice to stay home with the children was a

unilateral decision he made because he did not want to work. Jessica stated

after the birth of H.C. in 2008, she returned to work only three weeks after a

caesarean section delivery because Daniel refused to get a job. However, she

also acknowledged she worked varying shifts and more than one job at a time

and she depended on Daniel a lot to help with the children. Jessica testified she

took care of everything involving the children and their schooling and that the

task of getting the children up, ready, and to school often fell on her after she

returned home from an overnight shift at work. She testified when she worked

the day shift she would often get home around 11:30 p.m. or midnight to a messy

home and would still have to give the children baths and get them ready for bed.

She testified Daniel did not know the parties’ middle child’s diagnosis and she

scheduled and took H.C. to all of her appointments.

      Before the trial court, Jessica asserted Daniel refused to allow her

visitation with the children between the time he moved out of the marital home

with the children at the end of August and the time of the temporary hearing in

mid-October 2014. Daniel denied the assertion and testified he allowed Jessica

to visit with the children at his parents’ home whenever she wanted but she did

not take advantage of his offer. Daniel also contended that on November 12,

2014, the district court modified the temporary custody order to address visitation

for the holidays.   The court ordered Jessica would have visitation with the

children on Thanksgiving, but Jessica failed to exercise her visitation with the
                                         5


children because she went to Tennessee for a church event.            Daniel further

testified he offered Jessica additional visitation in summer 2015 but Jessica failed

to take advantage of the opportunity.

       Jessica testified she moved to Tennessee because she believed there

would be better job opportunities for herself and Ken, a better education system

for the children, and a specialized program for the parties’ middle child, H.C.

Jessica also testified they moved to Tennessee to be closer to Ken’s family—Ken

testified his mother and sister lived in Tennessee, his father lived in Iowa, and his

children from a previous marriage lived in Kansas. Additionally, Jessica admitted

they had rarely seen his mother or sister since moving there six months before.

       Following her move to Tennessee, Jessica saw the children only three

times between February and August 2015 due to financial reasons. In June,

Jessica exercised visitation with the children for two and a half weeks. She

offered to pay her younger sister to watch the children during the visit. At trial,

the children’s fifteen-year-old aunt testified Jessica and Ken worked all the time

and then would come home and fight in their bedroom. She testified the children

had good attitudes when they arrived in Tennessee and the youngest child was

potty trained; however, the children’s attitudes changed while they were there—

one child told the others she hated them and tried hitting the aunt or running

away—and the parties’ youngest child regressed in potty training.          The aunt

testified Jessica and Ken yelled, screamed, and cursed at the children, Jessica

spanked or slapped the children and Ken grabbed the children by the face or

yanked them by the arm, and neither tried other methods of discipline. She

testified Jessica and Ken did not make meals for the children and instead
                                        6


brought fast food home at night after work for a late dinner. She testified Jessica

rarely gave the children baths and the task often fell on the aunt instead. She

testified that at times the only food in Jessica and Ken’s home was the snacks

Daniel sent with them for the trip.     She stated she called her mother—the

children’s maternal grandmother—complaining she was scared and there was no

food in the house, and the grandmother sent the aunt a care package of food and

other supplies for the aunt and children.      The aunt also testified she had

observed Daniel cooking and cleaning for the children and disciplining the

children using the time-out method when spending time with the children in Iowa.

      The principal of the school where the two oldest children had attended in

Iowa contributed a written statement, in which she wrote she had “observed and

witnessed a significant change since the change of residence and care” during

the 2014–2015 school year when the children began living with Daniel and their

maternal grandparents. She noted the children had better hygiene, were well-

rested, had an improved ready-to-learn demeanor, and also had better

attendance. The principal further stated:

              After spending time with Mom, Jessica, the girls have come
      to school with dirty faces, dirty clothes, and mismatched shoes.
      Their hair has not been taken care of and is not clean, with days of
      having food in their hair. [The children] are often tired after
      spending the night with Mom. [H.C.] has fallen asleep several
      times during the school days and [T.C.] is often easily agitated.
              [The children] have shown consistency in the “ready to learn”
      characteristics after spending time with their paternal grandparents
      and Daniel. [H.C.’s] behavior has improved. Daniel has worked as
      an education partner with the school by attending her
      [Individualized Education Program (IEP) meetings] to provide more
      services to [H.C.]. [T.C.] is more flexible and interacts with her
      peers without agitation. The girls are well-rested, clean, and
      anxious to be at school.
                                           7


              I have included a copy of their attendance for you to view
       regarding my attendance concerns when these young ladies stay
       with Mom. Every minute of their education matters.
              This positive change for these young ladies in this short of
       time has made a successful impact on their education in various
       aspects.

       The principal also testified at trial in July, stating both parents were

present at the children’s activities, although she acknowledged Jessica did not

attend any school activities for the children after she moved to Tennessee. The

principal recognized Jessica had attended more IEP meetings for the children

than Daniel, but acknowledged Daniel attended at least three or four meetings

and noted Jessica had left one meeting early. The record demonstrates Jessica

took the lead role in IEP meetings and initiated passing a notebook back and

forth with H.C.’s teacher so that the parties could communicate with the child’s

teacher regarding her progress.1 The principal also testified about attendance

issues involving the children in the past and stated the school did not have any

truancy concerns when the children were in Daniel’s care.               Regarding the

children’s truancy, Jessica stated the parties’ middle child was often absent due

to doctors’ appointments, while the parties’ oldest child was often absent

because Daniel refused to get her ready for school and drop her off. Jessica

testified regarding an incident in which she was at the library prepping for her

own class and received a call from the school that the children were not there.

She stated when she asked Daniel about it, he told her someone from the school

had come to the home, but he did not answer the door.

1
  However, the record also shows Jessica’s relationship with the school was not without
its struggles. The principal testified regarding an incident in which Jessica became
angry with the school secretary, and thereafter, Jessica was not allowed to be alone with
the secretary when she came to the school.
                                         8


       Daniel testified at trial that throughout the length of the marriage, Jessica

did fifty percent of the housework but believed he did much more than fifty

percent toward the end of the marriage. He also alleged Jessica trashed the

marital home after he left with the children in August 2014, testifying there was

trash, dog feces, and animal urine all over the floor and mold was growing on the

walls. He also testified there were no beds for the children in the home. Jessica

claimed the home was in poor condition when Daniel and the children moved out,

and she and Ken spent several weeks cleaning and fixing up the home before

they could move into it in November. However, she also admitted the family did

not have a dog and the dog came into the home after the parties separated.

Daniel further testified he discovered the home was trashed again after Jessica

and Ken moved to Tennessee and he had to clean and make repairs to the home

before it was habitable. Daniel also testified he got the mortgage caught up and

paid overdue utility bills on the home without Jessica’s help. Jessica admitted

she sold several household items from the home and did not use the proceeds

for marital debts. Jessica further admitted she continued to collect supplemental

security income payments as payee for the parties’ middle child even after Daniel

was awarded temporary physical custody of the children and was in arrears on

her child-support obligation.

       On July 4, 2015, one of the parties’ children told Daniel and two other

members of Daniel’s family that Ken had sexually abused her. Daniel contacted

the Iowa Department of Human Services (DHS) and the family doctor, who

advised Daniel to take the child to the emergency room. Daniel also contacted

authorities in Tennessee, who investigated the claims and determined the
                                            9


allegations to be unfounded. Due to the children’s allegations, Daniel filed an

emergency motion for modification of visitation, requesting a delay in Jessica’s

visitation with the children scheduled to begin on July 19. The district court

granted Daniel’s motion.       On August 2, Daniel and Jessica exchanged the

children for a two-week visit.        On August 11, Jessica filed a motion for

emergency modification of visitation, asking the district court to grant Jessica

sole legal and physical care of the children alleging Daniel and his family

members had coached the children to falsely accuse Ken of sexual abuse. The

court ordered the children to remain with Jessica in Tennessee until the

scheduled hearing on September 2 and terminated the order prohibiting contact

between Ken and the parties’ children. Jessica enrolled the two older children in

school in Tennessee, but because Tennessee did not have preschool for three-

year-olds, the youngest child was not eligible to attend preschool.2

       The court reopened the record and held another day of testimony on

September 2. Jessica testified Daniel did not inform her of the allegations made

against Ken; instead, she learned about the allegations from her lawyer on July

17, two days before the children were scheduled to begin an extended visit with

her. Jessica admitted she argued with Ken “a little bit” while the children were

visiting them in June when the children’s aunt was babysitting, but denied

arguing with Ken within the preceding two months.             The parties’ oldest child

testified she liked living with both Jessica and Daniel and that she missed her

dad.    The child further stated, “My mom told me lies,” and upon further

2
  The record indicates both of the parties’ older children attended preschool at age three
in Iowa. Additionally, Daniel testified J.C. was registered and had completed all of the
necessary screenings to attend preschool in Iowa.
                                         10


questioning explained Jessica had told the child to lie to the interviewer in

Tennessee and say she wanted to live with Jessica.

       On September 4, 2015, the district court entered a decree awarding

physical care to Jessica and reasonable and liberal visitation to Daniel. The

court ordered Daniel to pay $75 per month in child support to Jessica for

October, November, and December 2015, and ordered the amount of child

support to increase to $500 per month beginning in January 2016.              Daniel

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

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

       III.   Analysis

       Daniel claims the district court erred in awarding physical care of the

parties’ three minor children to Jessica. He also contends the court erred in

calculating his child support obligation based on his earning capacity rather than

his actual earnings.

              A.       Physical Care

       When child custody and physical care are at issue in a marriage

dissolution case, the primary consideration is the best interests of the children.
                                           11


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

598.41(3) (2013)3 and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa

1974),4 in making a physical-care determination. Also relevant to this decision


3
  Iowa Code section 598.41(3) provides “the court shall consider the following factors” in
making a physical care determination:
        a. Whether each parent would be a suitable custodian for the child.
        b. Whether the psychological and emotional needs and development of
             the child will suffer due to lack of active contact with and attention
             from both parents.
        c. Whether the parents can communicate with each other regarding the
             child’s needs.
        d. Whether both parents have actively cared for the child before and
             since the separation.
        e. Whether each parent can support the other parent’s relationship with
             the child.
        f. Whether the custody arrangement is in accord with the child’s wishes
             or whether the child has strong opposition, taking into consideration
             the child’s age and maturity.
        g. Whether one or both the parents agree or are opposed to joint
             custody.
        h. The geographic proximity of the parents.
        i. Whether the safety of the child, other children, or other parent will be
             jeopardized by the awarding of joint custody or by unsupervised or
             unrestricted visitation.
        j. Whether a history of domestic violence, as defined in section 236.2,
             exists. . . .
        k. Whether a parent has allowed a person custody or control of, or
             unsupervised access to a child after knowing the person is required to
             register or is on the sex offender registry as a sex offender under
             chapter 692A.
4
  Additional factors the court should consider include:
                 (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.
                                            12

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). Our objective is to place

the children in an environment likely to promote a healthy physical, mental, and

social maturity. Hansen, 733 N.W.2d at 695.

       Jessica and Daniel both agreed the other is fit and proper to parent their

children and the children’s best interests are served by each parent being

involved in the children’s lives. It is obvious both parents love their children and

are capable of providing a stable home for them.

       In its decree, the district court acknowledged there were “numerous

problems” during the parties’ marriage and both Jessica and Daniel “were

responsible for the family’s dysfunction.” The court noted Jessica worked long

hours while attending school and “did not believe Daniel was doing his part.”

Daniel testified he was a stay-at-home parent to save the family money on

daycare expenses.       He further testified that although Jessica often got the

parties’ two oldest children ready in the mornings and took them to school, he

picked the children up from school, prepared their meals, and got them ready for

bed. Jessica testified Daniel stayed at home not because he wanted to save the


              (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.
                                         13


family money but instead because he did not want to work. However, Jessica

admitted she relied heavily on Daniel to care for the children because she

worked long hours and attended school full time.

       The district court did not make specific credibility findings in its written

ruling but obviously seemed skeptical about whether Daniel was “truly a stay-at-

home dad,” noting “for whatever reasons, it seems th[e] role of [getting the

children to school] often times fell on Jessica.” The court noted the children had

school attendance issues and “were often not adequately dressed and had a

difficult time staying awake” at school.      The court found both parents were

responsible for meeting the needs of the children prior to their separation and

that some of these issues had existed then.

       The school principal testified that during the 2014–2015 school year, she

had observed the children exhibit significant progress after being placed in

Daniel’s physical care. The principal stated after the children spent time with

Jessica, they had poor hygiene, mismatched shoes, and would be tired and have

behavioral problems.     In contrast, the principal recognized after the children

spent time with Daniel, the children came to school with better hygiene, appeared

well-rested, were prepared with a ready-to-learn attitude, and had better

attendance.    The court acknowledged the progress but concluded it was

“unknown . . . how much of the improvement was due to [Daniel] stepping up as

opposed to his mother . . . taking the leading role caring for her grandchildren.”

       We recognize Jessica took the lead role in the children’s IEP meetings

and took H.C. to most, if not all, of her doctors’ appointments prior to the parties’

separation, but Daniel has not been uninvolved in the children’s care.               He
                                          14


attended several IEP meetings for the two older children over the years, and

regardless of why he did not work, the record clearly demonstrates Daniel

provided care for the children while Jessica was at work and school.          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”). The

fact remains the children showed marked improvements in their cleanliness,

attitudes, and attendance at school after being placed in Daniel’s temporary 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 district court gave Daniel some credit when it recognized “he has

been employed the last six months leading up to the July 1 hearing date,” but

then became critical, writing

       Yet, he seems to lack a strong work ethic that is required in all
       families, but certainly as a single parent. While Daniel’s family
       members have seen improvement in his role as father, it is difficult
       to discern how much his mother provides in caring for the children.
       On the other hand, Jessica is by all accounts a hard worker and
       has always seemed to have numerous oars in the water. She has
       been actively involved in [H.C.]’s IEP and has a history of working
       with persons with special needs.

The district court seemed unconcerned that Jessica had moved to Tennessee

with her new boyfriend while the dissolution proceedings were ongoing and left

the children behind with Daniel. She testified she moved to Tennessee for better

job opportunities and because she believed Tennessee could provide the

children with a better education. Neither Jessica nor Ken had a job offer when

they moved to Tennessee.         Jessica also asserted the move to Tennessee

allowed them to be closer to Ken’s family. Ken testified his mother and sister live
                                          15


in Tennessee, but his father lives in Iowa and his two children from a prior

marriage live in Kansas. Jessica also admitted they had rarely seen Ken’s family

since moving to Tennessee in February. On the other hand, Daniel had a steady

job for six months leading up to the trial until he was laid off. Prior to the decree,

he brought the mortgage up to date and paid overdue utility bills. Daniel had

plans to live in the marital home where the children grew up and continue to live

near his and Jessica’s extended families.5

       The district court also emphasized the investigation into the allegations of

abuse against Ken and noted Jessica’s contention that Daniel and his mother

“conspired to manipulate the children in making the abuse allegations,” and

determined, “If true, such an act of manipulation would all but preclude

consideration of Daniel as a primary caregiver.” The court noted the evidence

indicated Daniel’s mother “suggested the improper touching to the young

Comstock children,” which both Daniel and his mother denied. The court further

noted “the Comstock grandparents have done much to support their

grandchildren” and “seem[] to have accepted the results of the investigation.”

Ultimately, the court found Daniel’s failure to “immediately notif[y] Jessica upon

learning of the allegations made by their children . . . was not only a poor choice

but is a significant factor for the Court to consider when determining which parent

is most likely to support the other parent’s relationship with their children.”

        We agree with Jessica and the district court that sexual-abuse allegations

are very serious, and Daniel should have informed her. Jessica admitted that if

5
  We also note, placing the children in Daniel’s physical care would allow H.C. to
continue to be treated by the doctors who diagnosed her and have worked with her since
the age of three.
                                           16


Daniel had informed her of the allegations, she would have relayed them to

Ken—possibly hindering the ongoing investigation into the matter.                 Daniel

contacted DHS in both Iowa and Tennessee and took the child to the emergency

room. Based on these facts, we do not agree with the district court that Daniel’s

failure to inform Jessica of the allegations is evidence he will not support her

relationship with the children in the future. On the contrary, we find Jessica’s

move to Tennessee, for seemingly no reason other than to begin a new life with

her new boyfriend, suggests she does not prioritize supporting Daniel’s

relationship with the children.6

       The district court also seemingly found Jessica more credible when she

testified Daniel refused to allow her access to the children during the two-month

period between their separation and entry of the temporary custody order, and

Daniel less credible when he testified he offered visitation to Jessica whenever

she wanted during that period but told her the visits had to occur at his parents’

home where he and the children were residing because he feared Jessica would

leave the state with the children. The district court found: “Daniel’s failure to

keep Jessica informed of significant matters concerning her children combined

with his failure to allow her visitation with the children from the time he moved in

August 2014 until the temporary hearing demonstrates that supporting Jessica’s

relationship with the children is not a priority.”




6
  We also note the irony in Jessica’s unproven complaint that Daniel and his family
coached the children to make false allegations against Ken, when there is clear
evidence in the record Jessica told the parties’ oldest child to lie and say she wanted to
live with Jessica.
                                        17


       To the extent to which that brief time period is of concern, those concerns

are neutralized by the record evidence that once the district court entered the

temporary order, Daniel fully complied with the order and did not interfere with

Jessica’s parenting time. The record also demonstrates the court modified the

temporary order in November 2014 to provide Jessica with visitation with the

children on Thanksgiving, but instead of exercising her visitation, Jessica

traveled to Tennessee for a church event. In January 2015, the court granted

Daniel’s request for a modification of the temporary order and ordered Daniel to

have physical care of the children pending a final hearing in the matter and

provided Jessica was to have visitation with the children so long as the children

remained in Iowa. Daniel testified he offered Jessica visitation with the children,

but Jessica claimed that due to financial reasons she could only exercise

visitation with the children three times between February and August 2015.

Those financial reasons were presumably the result of her decision to move out

of state with her boyfriend without either of them having secured employment.

The record also shows Daniel invited Jessica’s family to a birthday party he was

hosting for the children. Thus, her complaints directed at Daniel of denying her

access ring hollow against her own history of not exercising visitation when she

had every right to do so.

      The court discussed factors supporting Daniel’s request for physical care

of the children, including “the number of extended family members that reside in

the Page County area from both Daniel’s family and Jessica’s family, the

children’s familiarity with the school system, and the fact that [H.C.] has treated

with Iowa doctors concerning her development issues,” but did not give them
                                         18


much weight. The court ultimately determined “Jessica is best suited to have

primary care of the parties’ three children” for three main reasons: (1) “[s]he has

been employed throughout the marriage and shown she can provide a home for

the children,” (2) “[s]he has been actively involved in [H.C.]’s care since age three

and has experience with working with others with development issues,” and

(3) “the Court [took] Jessica at her word when she testified she could actively

support Daniel’s relationship with the children.”

       We agree with the district court these are all factors we must consider in

making a physical-care determination, but unlike the district court, we cannot give

only a passing glance to other factors that weigh in Daniel’s favor. Daniel was

the primary caregiver for the children for most of the marriage. The two older

children showed significant improvement in their behaviors and hygiene at school

when in Daniel’s physical care. The record also indicates the parties relied on

their families extensively during the marriage and early years of the children’s

lives. Daniel’s parents regularly cared for the children when both parties had to

work and would spend time with the children for days and weeks at a time.

Jessica’s mother and sisters also cared for the children on numerous occasions.

It is obvious the children enjoy close ties to both extended families, all of whom

live in the Shenandoah area near Daniel and where the children have spent

almost their entire lives.

       We commend Jessica for her devoted work ethic; however, we again note

that she moved to Tennessee without arranged employment, and when

employed, her schedule undoubtedly requires someone else to care for the

children when they are not in school. Jessica moved to Tennessee during the
                                        19


middle of the dissolution proceedings, leaving the children behind in Daniel’s

care. When she had the children for visitation in the summer, she was unable to

adequately provide food and proper care for the children. Jessica does not have

any of her extended family nearby to help care for the children. Ken testified his

sister could care for the children if asked, but the children do not know Ken’s

sister and she is essentially a stranger to them. The availability of grandparents

to assist a parent in caring for children is a factor a court may consider in

determining which parent should receive physical care. Melchiori v. Kooi, 644

N.W.2d 365, 369 (Iowa Ct. App. 2002) (noting grandparents may be better

childcare providers than strangers); see also In re Marriage of Welbes, 327

N.W.2d 756, 758 (Iowa 1982) (affirming grant of physical care of child to father,

who had “assumed the responsibility of caring for her with the assistance of his

parents”); In re Petition of Purscell, 544 N.W.2d 466, 469 (Iowa Ct. App. 1995)

(placing physical care of child with father who lived with his parents and who

would receive assistance from them in caring for the child). Placing the children

in Daniel’s physical care in Iowa, near the children’s extended families on both

sides, ensures the children would have childcare providers whom they know and

trust and who have helped care for them their entire lives.

       Upon our de novo review of the record, we find both parties are clearly

capable parents who can provide the children with a stable home. We recognize

uprooting the children from the home and school they have known for the past

year and asking them to move several states away from their new friends and

their mother will be difficult.   However, for the reasons discussed above, we

conclude placing the children in the physical care of Daniel is in their long-term
                                             20


best interests. We affirm as modified the portion of the district court’s decree

granting Jessica physical care of the parties’ three minor children.

       Accordingly, we need not decide and do not reach the child-support issues

Daniel raises. We remand this case to the district court for determination of

Jessica’s    child-support     obligation    based      upon    the    present     financial

circumstances of the parties.

               B.      Appellate Attorney Fees

       Jessica requests appellate attorney fees.7 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

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.   After

considering the relative financial positions of the parties and Daniel’s successful

appeal of the physical-care award, we decline to award Jessica appellate

attorney fees.

       IV.     Conclusion

       We modify the district court’s decree to grant Daniel’s request for an

award of physical care of the parties’ three minor children. We remand the issue

of child support and other related matters to the district court for further

proceedings consistent with this opinion.          We deny Jessica’s request for an

award of appellate attorney fees. Costs on appeal are assessed to Jessica.

       AFFIRMED AS MODIFIED AND REMANDED.

7
 In his reply brief, Daniel asserts he should be awarded appellate attorney fees. We do
not address issues raised for the first time in a party’s reply brief. See Hills Bank & Trust
Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009).
