                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1021
                              Filed June 3, 2020


SYDNEY BOWLIN,
    Plaintiff-Appellee,

vs.

WILLIAM CODY SWIM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Randy V. Hefner,

Judge.



      William Cody Swim appeals the district court’s custody ruling placing his

and Sydney Bowlin’s child in Bowlin’s sole legal custody, among other things.

AFFIRMED.



      Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellant.

      Eric Borseth of Borseth Law Office, Altoona, for appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
                                           2


DOYLE, Judge.

       Following a contentious custody battle, William Cody Swim (Cody) appeals

the district court’s ruling placing his and Sydney Bowlin’s child in Bowlin’s sole

legal custody. Cody challenges various provisions of the district court’s ruling,

including the legal custody determination. Both parties request the award of

appellate attorney fees. Upon our de novo review of the record, we affirm and we

decline to award appellate attorney fees.

       I. Scope and Standard of Review.

       Our review of equitable proceedings is de novo. See Iowa R. App. P. 6.907;

Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005); see also Hensch v. Mysak,

902 N.W.2d 822, 824 (Iowa Ct. App. 2017). This requires reviewing the entire

record and deciding anew the factual and legal issues preserved and presented

for review. Hensch, 902 N.W.2d at 824. “Although our review is de novo, we afford

deference to the district court for institutional and pragmatic reasons.” Id. A de

novo review “does not mean [the appellate courts] decide the case in a vacuum,

or approach it as though the trial court had never been involved.” Davis-Eisenhart

Mktg. Co. v. Baysden, 539 N.W.2d 140, 142 (Iowa 1995). Rather, “great weight”

is given the findings of fact of the trial court where the testimony is conflicting. See

id. (citation omitted). This is because the trial court, with the advantage of listening

to and observing the parties and witnesses, is in a far better position to weigh the

credibility of witnesses than the appellate court which is limited to a written record.

See In re Marriage of Zebecki, 389 N.W.2d 396, 398 (Iowa 1986); Hensch, 902

N.W.2d at 824; see also In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa

1984); In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009)
                                          3


(recognizing the district court can “listen to and observe the parties and witnesses”

and giving weight to the district court’s credibility determinations); Birusingh v.

Knox, 418 N.W.2d 80, 82 (Iowa Ct. App. 1987). Unlike this court, the trial court

has the front row seat to observe the “witness’s facial expressions, vocal

intonation, eye movement, gestures, posture, body language, and courtroom

conduct, both on and off the stand,” and the witness’s “nonverbal leakage” showing

“[h]idden attitudes, feelings, and opinions” not reflected in the cold transcript the

appellate court reviews.     Thomas Sannito & Peter J. McGovern, Courtroom

Psychology for Trial Lawyers 1 (1985). The trial judge thus is in the best position

to assess witnesses’ interest in the trial, their motive, candor, bias, and prejudice.

See State v. Teager, 269 N.W.2d 348, 351 (Iowa 1936). Thus, we give weight to

the factual findings of the district court, especially when considering the credibility

of witnesses, but are not bound by them. See Iowa R. App. P. 6.904(3)(g).

Furthermore, we will affirm the district court unless the district court failed to do

substantial equity.   Hensch, 902 N.W.2d at 824.          And because each family

presents its own strengths and challenges, we base our decision on the unique

circumstances of each case. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa

1995); Hensch, 902 N.W.2d at 824.

       “If there has been a finding of contempt, we review the evidence to assure

ourselves that the court’s factual findings are supported by substantial evidence.

The district court’s legal conclusions are reviewed for errors at law.” In re Marriage

of Swan, 526 N.W.2d 320, 326–27 (Iowa 1995) (citation omitted). “A contemner’s

sentence is reviewed for an abuse of discretion.” Ary v. Iowa Dist. Ct., 735 N.W.2d

621, 624 (Iowa 2007).
                                            4

       Awarding trial attorney fees is reviewed for an abuse of discretion. See In

re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006) (reviewing award of trial

attorney fees).

       Evidentiary rulings are generally reviewed for an abuse of discretion. See

Mohammed v. Otoadese, 738 N.W.2d 628, 631 (Iowa 2007) (“We review the

district court’s determination of relevancy and admission of relevant evidence for

an abuse of discretion.”); see also In re Marriage of Mennen, No. 09-1821, 2010

WL 2384865, at *3 (Iowa Ct. App. June 16, 2010) (finding court abused its

discretion in admitting and considering therapist’s “letter in arriving at its decision”);

In re Petition of Ziegler, No. 05-0911, 2006 WL 623685, at *2 (Iowa Ct. App. Mar.

15, 2006) (“We reverse an evidentiary ruling of the district court only if the court

abused its discretion, to the complaining party’s prejudice.”).           “An abuse of

discretion consists of a ruling which rests upon clearly untenable or unreasonable

grounds.” Fenton v. Webb, 705 N.W.2d 323, 326 (Iowa App. Ct. 2005). “A ground

or reason is untenable when it is not supported by substantial evidence or when it

is based on an erroneous application of the law.” In re Det. of Stenzel, 827 N.W.2d

690, 697 (Iowa 2013) (quotation omitted).

       But if the evidentiary ruling is based on hearsay evidence, our review is for

errors at law. See id. (noting “we generally review the district court’s admission of

hearsay evidence for errors at law” unless “the basis for admission of hearsay

evidence is the expert opinion rule,” where “we will employ an abuse of discretion

standard”).

       Issues of statutory interpretation are reviewed for correction of errors at law.

Fishel v. Redenbaugh, 939 N.W.2d 660, 662 (Iowa Ct. App. 2019).
                                          5


         II. Discussion.

         On appeal, Cody challenges the district court’s ruling in many respects.

First, he asserts the court erred in admitting the child custody evaluation and

requests the case be remanded to the trial court to enter a ruling without

consideration of the report. As to custody, Cody points out Sydney’s petition

requested the child be placed in her and Cody’s joint legal custody and she did not

change her request until trial. Cody argues the district court should not have

considered Sydney’s request for sole legal custody at trial. Even if the court did

not err in considering sole legal custody, Cody argues the child should not be

placed in Sydney’s sole legal custody. Cody also contends the district court

abused its discretion in finding him in contempt for failing to pay attorney fees as

ordered, arguing he lacked the ability to pay. Finally, he maintains the court should

not have awarded Sydney trial attorney fees.          Both he and Sydney request

appellate attorney fees. Facts specific to the claims on appeal will be set forth

below.

         A. Admission of the Custody Evaluation.

         In May 2018, Sydney petitioned for custody, visitation, and support of the

parties’ minor child. In October 2018, Cody moved for the appointment of a

custody evaluator. Cody’s motion’s prayer specifically requested Susan Gauger

be appointed as the custody evaluator. Sydney agreed that Gauger should be

appointed to perform a custody evaluation. The court then entered an order stating

“the parties have stipulated to the appointment of a custody evaluator and that it is

in the best interest of the parties’ minor child to order a custody evaluation herein.”
                                           6


The court appointed Gauger as the custody evaluator and directed Gauger to

submit her report to the court and the parties at least sixty days before trial.

       In December 2018, before Gauger’s evaluation was finished, Cody

designated Gauger as an expert witness who might be called at trial. In March

2019, before trial, Cody filed his anticipated witness and exhibit list. He did not list

Gauger as a witness or her report as an exhibit, but did list “[a]ny witness listed or

called by another party” and “[a]ny exhibit listed by another party.” The next day,

Sydney filed her anticipated witness and exhibit list, which listed the “Child Custody

Evaluation” as an expected exhibit. It did not list Gauger as an anticipated witness.

Later that same day, Cody filed an “reservation of objections” advising Sydney and

the court he was reserving “foundation, identification and authentication

objections” to several of Sydney’s listed exhibits, including the custody evaluation.

       At trial, Sydney offered the custody evaluation as an exhibit, and Cody

objected. Cody’s counsel stated:

       I’m going to strongly object to this report. I can’t cross-examine a
       piece of paper. If Ms. Bowlin wanted to use this report, she should
       have went through the steps to make sure the custody evaluator was
       here to answer questions to lay foundation to this. The report is
       simply hearsay. It’s also hearsay within hearsay.

In response, Sydney’s counsel noted the evaluator had only provided a copy of

her evaluation to the parties, not the court. Because the court’s order specifically

stated the evaluation was to be filed with the court, Sydney’s counsel argued the

evaluation should be admitted in compliance with the order.

       The court admitted the exhibit subject to Cody’s objection and stated if it

determined the objection should be sustained, the court would not consider the

report in its ruling. Later, in the court’s post-trial written ruling, the court found
                                          7


Cody’s motion should be overruled and the evaluation admitted, citing to section

598.12B (2018) and chapter 63 of the Iowa Court Rules. The court also found

Cody waived any hearsay objection because “[h]e filed the motion requesting the

report and stipulated to entry of the order that directed the preparation and

dissemination of the report, not only to the attorneys, but to the court.”

       Having determined the exhibit should be admitted, the court then decided

how much weight to give the exhibit. The court found the evaluation helpful but

not outcome determinative. The court disagreed with Gauger’s recommendation

that joint legal custody be granted to the parties. The court did not consider the

report any further.

       On appeal, Cody maintains the court erred in admitting the custody

evaluation into evidence, arguing that “at no point in time did the legislature or

supreme court indicate that these types of reports [like the one from Gauger] were

an exception to the rule against hearsay as the district court indicates.” He also

points to In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981), as support

for excluding the report from evidence. We disagree with Cody on both counts.

       Before July 1, 2017, section 598.12, then titled “Attorney or guardian ad

litem for minor child—investigations,” contained five subsections. See Iowa Code

§ 598.12 (2017). The first subsection permitted the court to appoint an attorney to

represent the parties’ minor child or children’s legal interests in the custody matter.

See Iowa Code § 598.12(1). Subsection two permitted the court to appoint a

guardian ad litem (GAL) to represent the parties’ minor child or children’s interests

in the custody matter. See id. § 598.12(2). Subsection three allowed the court to
                                          8

appoint one person to serve as the child or children’s attorney and GAL. See id.

§ 598.12(3). Subsection four permitted the court to

      require . . . an appropriate agency make an investigation of both
      parties regarding the home conditions, parenting capabilities, and
      other matters pertinent to the best interests of the child or children in
      a dispute . . . . The investigation report . . . shall be submitted to the
      court and available to both parties. The investigation report
      completed by the appropriate agency shall be a part of the record
      unless otherwise ordered by the court.

See id. § 598.12(4) (emphasis added). Subsection five is not relevant here.

      In 2017, the legislature passed a bill, effective July 1, 2017, separating

various subsections of 598.12 into three distinct sections. See 2017 Iowa Acts

ch. 43; see also In re Marriage of Erpelding, 917 N.W.2d 235, 245 n.9 (Iowa 2018)

(discussing amendments). Section 598.12 is now titled “[GAL] for minor child” and

relates only to the appointment of a GAL. See Iowa Code § 598.12 (2018). That

section explicitly states the GAL “shall not testify, serve as a witness, or file a

written report in the matter.” Id. § 598.12(1)(a)(6). The 2017 legislation added

sections 598.12A and .12B. See 2017 Iowa Acts ch. 43, §§ 3, 4. Section 598.12A

is titled “Attorney for minor child” and concerns the appointment of an attorney.

Like section 598.12, this new section states the appointed attorney “shall not

testify, serve as a witness, or file a written report in the matter.” Iowa Code

§ 598.12A(1)(a)(5) (2018).

      The last addition, section 598.12B, is titled “Child custody investigators and

child and family reporters.” Under section 598.12B(1), the Iowa Supreme Court

must “prescribe and maintain standards for child custody investigators and child

and family reporters.” Additionally, section 598.12B(2) provides:
                                         9


      The court may require a child custody investigator or a child and
      family reporter to obtain information regarding both parties’ home
      conditions, parenting capabilities, and other matters pertinent to the
      best interests of the child or children in a dispute concerning custody
      of the child or children. A report of the information obtained shall be
      submitted to the court and available to both parties. The report shall
      be a part of the record unless otherwise ordered by the court.

(Emphasis added.) Reports from an appointed investigator or reporter are treated

differently than the reports of an appointed GAL or attorney.         Compare id.

§ 598.12B(2) with id. §§ 598.12(1)(a)(6), .12A(1)(a)(5).

      After the legislative changes in 2017, the Iowa Supreme Court in August

2018 adopted chapter 63 of the Iowa Court Rules, setting forth standards of

practice for child and family reporters (CFRs) in child custody cases. See Iowa Ct.

R. 63 Standard 1. The commentary to Standard 4(C) of Rule 63 states:

      Pursuant to Iowa Code section 598.12B(2) (2017), the CFR’s report
      must be submitted to the court and available to all parties. The
      CFR’s report will be a part of the record unless the court otherwise
      orders. Any party may call the CFR as a witness. If called as a
      witness, the CFR may be cross-examined concerning the report.

      The 2017 changes to section 598.12 were in operation when Sydney filed

her petition and when Cody moved for the appointment of the evaluator. Thus, if

Gauger was a CFR as the term is used in section 598.12B(2) and chapter 63 of

the court rules, her report was required to be part of the record unless otherwise

ordered by the court. Cody does not assert Gauger was not a CFR. Instead, he

tries to distinguish the terms used in section 598.12B(2), a “child custody

investigator” and a CFR. As his argument goes, because chapter 63 only refers

to CFRs, it must exclude child custody investigators from the standards set out in

it, including that the CFR’s report must be submitted as part of the record unless
                                       10


the court finds otherwise. Thus, Cody asserts the court’s reliance on chapter 63

of the court rules is in error.

       Even assuming this argument has merit, it ignores the language of section

598.12B(2) the applicable law in this case, unlike the standards in chapter 63 of

the court rules, which are aspirational. See Iowa Ct. R. 63 Standard I(2) & (3).

Under section 598.12B(2), a report from either a CFR or a “child custody

investigator” must be submitted to the district court unless the court orders

otherwise. Any distinction between a CFR and a “child custody investigator” is

without difference under section 598.12B(2). The court did not err in abiding by

the language of section 598.12B(2).

       Even if the pre-July 2017 provisions applied, the result would be no

different. Although Cody cites Williams as supporting his argument, Williams is

distinguishable from this case. See 303 N.W.2d at 163. In Williams, the supreme

court explained that such reports are inadmissible hearsay “[u]nless [the] written

report is properly before the court by agreement or stipulation.” Id. Cody ignores

the “unless” part of the equation.

       Here, the district court did not appoint Gauger on its own motion. Rather,

the court appointed Gauger after Cody requested the appointment and Sydney

agreed. The language of Cody’s motion, mirrored in the court’s order, required

Gauger to file her report with the court. We believe the parties’ agreement to the

appointment of the evaluator overcomes any hearsay objection under these facts,

absent some showing of prejudice by the party opposing entry of the report. Cody

not only requested the evaluator’s appointment, he listed Gauger as a potential

expert witness. So there is no question Cody had adequate notice of the subject
                                         11


matter of the evidence and was not unfairly surprised by admission of the report

into evidence. There is also nothing that suggests Cody could not have called

Gauger himself.1

       Finally, the district court did not rely solely on the report in making its

decision. It even reached a decision against the recommendation of the evaluator.

Under the facts here, the court did not err in admitting the report into evidence, and

it did not abuse its discretion in determining what weight to place upon the report.

Moreover, because our review is de novo, we can ignore the evaluator’s report in

our determination to avoid any error. See, e.g., Williams, 303 N.W.2d at 163

(“Because our review is de novo, we disregard the report in our consideration of

the issues.”); In re Marriage of Schneckloth, 320 N.W.2d 535, 536 (Iowa 1982) (“In

according de novo review, this court disregards evidence to which meritorious

objection was made and considers all admissible evidence.”).            Because the

evaluation is unnecessary for us to reach the merits of the issues presented on

appeal, we do not consider the evaluation in our consideration of the issues raised.

For all of these reasons, we affirm the district court’s admission of the evaluator’s

report into evidence at trial.

       B. Sole Legal Custody.

       Cody argues the district court should not have considered Sydney’s request

for sole legal custody because she requested joint legal custody in her petition and

claims he did not have adequate notice that she was requesting sole legal custody.

He also argues placement of the child in Sydney’s sole legal custody was not in


1 The comment to Iowa Court Rule 63 standard IV(C) states: “Any party may call
the CFR as a witness.”
                                           12


the child’s best interests or supported by facts in the record. We address Cody’s

arguments in turn.

       1. Notice.

       As Cody points out, Sydney’s petition for custody stated she was requesting

the child be placed in her and Cody’s joint legal custody. Sydney made no formal

filing stating she was changing her request from seeking joint legal custody to sole

legal custody. Cody contends he therefore did not have proper notice of her

request and the court should not have even considered her changed custody

request. But the record shows that Cody was or should have known that Sydney

was seeking sole legal custody at trial.

       After entry of a protective order, Sydney provided a proposed temporary

custody order which proposed to grant her sole legal custody. In her answers to

interrogatories served on Cody’s counsel in September 2018, Sydney stated she

was seeking sole legal custody. Sydney testified she was requesting sole legal

custody with no objection raised by Cody. The court also admitted at trial Sydney’s

exhibit showing she was requesting sole legal custody, again with no objection by

Cody. Cody could have requested a continuance if he was surprised by her trial

declaration that she was seeking sole legal custody. He did not. Upon our review,

we find there is no question sole legal custody was before the court and was tried

and considered without objection from Cody. So we reject this challenge to the

sole legal custody award.

       2. Merits.

       “Iowa Code chapter 600B confers subject matter jurisdiction upon the

district court to decide cases of paternity, custody, visitation and support between
                                          13

unmarried parties.” Montgomery v. Wells, 708 N.W.2d 704, 707 (Iowa Ct. App.

2005).     Relevant here, “section 600B.40 grants the district court authority to

determine matters of custody and visitation as it would under Iowa Code section

598.41”—section 600B.40’s counterpart for divorcing or separating parents. See

id.; see also Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 891 n.3 (Iowa 2009);

Hensch, 902 N.W.2d at 825.

         Legal custody constitutes parental rights and responsibilities that include

but are “not limited to decision making affecting the child’s legal status, medical

care, education, extracurricular activities, and religious instruction.” Iowa Code

§ 598.1(5). Joint legal custody means that “neither parent has legal custodial

rights superior to those of the other parent.” Id. § 598.1(3).

         Our overriding consideration is the best interests of the child. See Iowa R.

App. P. 6.904(3)(o). In considering what custodial arrangement is in the child’s

best interest, we consider the nonexclusive factors set out by our legislature in

Iowa Code section 598.41(3).2. See Iowa Code § 600B.40(2) (“In determining the

visitation or custody arrangements of a child born out of wedlock, . . . the court

shall consider the factors specified in section 598.41, subsection 3.”) We also

consider (1) stability, continuity of caregiving, and approximation; (2) the ability of

the parents to communicate and show mutual respect; (3) the degree of conflict

between parents; and (4) the degree to which the parents generally agree about

their approach to daily matters. See Hansen, 733 N.W.2d at 695; see also In re

Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997); Hensch, 902 N.W.2d 822.

Parents’ “utter inability to communicate with each other” as a result of their “toxic

relationship” weighs against joint legal custody. See Gensley, 777 N.W.2d at 715.
                                          14


The parties’ inability to communicate and cooperate must rise above the “usual

acrimony that accompanies a divorce.” In re Marriage of Ertmann, 376 N.W.2d

918, 920 (Iowa Ct. App. 1985). “If the district court does not grant joint legal

custody, the court must cite clear and convincing evidence, according to the

enumerated factors listed above, that joint legal custody is unreasonable and not

in the children's best interests ‘to the extent that the legal custodial relationship

between the child and a parent should be severed.’” Gensley, 777 N.W.2d at 714

(citing Iowa Code § 598.41(2)(b)).

       The parties’ testimony provided differing accounts of the parties’

relationship, each party’s flaws and negative behaviors, and the party’s

relationship and care of their child. While we are not bound by the district court’s

findings of fact, they are still persuasive, given the court had a chance to view the

parties and hear the testimony. See In re Marriage of Brown, 487 N.W.2d 331,

332 (Iowa 1992). Here, the district court explicitly found Sydney was more credible

than Cody. Upon our de novo review of the record, we find no reason to disturb

the court’s credibility determination.

       As for Cody’s conduct, the district court found:

               As pertinent to the issues of legal custody and physical care,
       prior to the separation, Cody engaged in angry outbursts, perhaps
       related to his drinking, and would demean Sydney and call her
       profane names. He hid her cell phone. He damaged her property
       and damaged the residence they were living in. He attempted to
       alienate her from friends and family. He began surreptitiously
       recording communications with her. Cody controlled the finances,
       but that was due, at least in part, to the fact that the parties were not
       married and Cody earned substantially more than Sydney. Their
       cohabitation was punctuated by several temporary separations when
       Sydney would leave with [the child] and stay with neighbors or
       friends.
                                           15


               The parties’ relationship since the separation and after entry
       of the temporary orders has been marred by conflict over medical
       care, daycare, and parenting time exchanges. . . . Cody has
       scheduled conflicting medical appointments for [the child] and
       provided Sydney and her attorney with, at best, inaccurate
       information about medical care he had arranged for [the child]. He
       reported Sydney to [the Iowa Department of Human Services
       (D.H.S.)] for child abuse based upon scratches and abrasions that a
       doctor concluded were “not suspicious.” Cody reported . . . [the
       child’s] daycare provider and by all accounts highly qualified and very
       responsible, to D.H.S. for having too many children at her daycare
       contrary to D.H.S. rules or regulations. Cody filed this report even
       though it appears that [the parties’ child] may have been the child
       that resulted in the alleged violation. Cody contacted Sydney’s
       landlord alleging that Sydney was not accurately reporting her
       income and suggesting that she was not eligible for the low-income
       apartment or her rent should be raised. This action was vindictive
       and mean-spirited, and not justified by any legitimate goal.

       The court noted another problem area “was Sydney’s relationship with

Cody’s family, primarily his mother and three older sisters. . . . Suffice it to say that

the relationship between Sydney and Cody’s family is not good.” The court found

“Sydney objected to Cody delegating his parental duties to his family” and believed

“Cody uses his family as a crutch to avoid performing the duties she believes he

should be doing.” The court found that contrary to Cody’s claim that this evidence

tended to prove that Sydney could not support his relationship with the child,

       Sydney has attempted to support that relationship.              Most
       significantly, even after being granted temporary physical care, she
       remained in Indianola rather than move to Kalona where her family
       resides. According to her, this was so that [the child] would remain
       close to Cody and so that Cody would be able to exercise his
       scheduled visitation.

       Based on these findings of fact, the district court found joint legal custody

was not feasible, explaining:

               The parties agree that they have demonstrated virtually no
       ability to communicate constructively about issues related to [their
       child]. Cody has demonstrated a pattern of behavior that prevents
                                           16


       these parties from making joint decisions regarding [the child’s]
       medical care, daycare, and daily routine. Though he has ostensibly
       attempted to participate in some of these decisions, his participation
       has been at cross-purposes with Sydney and does not evidence a
       desire to cooperate and work with her. The evidence strongly
       supports the conclusion that his conduct has been motivated
       primarily to control Sydney, create the appearance of involvement,
       and construct a case for primary physical care. It would be
       problematic to extend joint legal custody permanently thus
       prolonging the conflict relating to [the child’s] medical care, daycare,
       and daily routine.
               In some cases, a high level of conflict is directly related to the
       separation or pending litigation, and in those cases sometimes there
       is evidence that the conflict will subside over time. In those cases
       joint legal custody may be appropriate despite the high level of
       conflict. In light of this record, I cannot conclude that it is foreseeable
       that the conflict between these parties will subside over time to the
       point where they can effectively cooperate in making joint decisions
       about [the child’s] health, education and welfare. The conflict in this
       relationship involves [the child’s] care directly, not tangentially.
       Continuing joint legal custody will more likely than not prolong the
       conflict.

       Upon our de novo review of the record, we defer to the district court’s

credibility assessments and conclude the district court’s factual findings were fully

supported by the record. We agree with the court that Cody’s actions show joint

legal custody was not a viable option here. We note that our decision on de novo

review to affirm the award of sole legal custody to Sydney does not seek to punish

Cody, but rather our effort to provide for their child’s best interests. For these

reasons, we affirm the district court’s ruling awarded Sydney sole legal custody of

the parties’ child.

       C. Contempt.

       Cody also contends the district court abused its discretion in finding him in

contempt for failing to pay court ordered attorney fees. Iowa Code section 598.23

provides that a court may cite and punish persons for contempt if they willfully
                                          17


disobey a temporary or final order or decree. “If the party alleging contempt can

show a violation of a court order, the burden shifts to the alleged contemner to

produce evidence suggesting the violation was not willful.” Ary, 735 N.W.2d at

624. “There are two ways in which the contemner may show that a failure to

comply with a court order was not willful: (1) the order was indefinite; or (2) the

contemner was unable to perform the act ordered.” Farrell v. Iowa Dist. Ct., 747

N.W.2d 789, 790-91 (Iowa Ct. App. 2008) (citation omitted). “When a party claims

an inability to pay, the test is whether there is any property out of which payment

can be made, not merely whether the party claiming an inability to pay is presently

working or has current funds or cash on hand.” Ary, 735 N.W.2d at 625.

       Our review of a district court’s contempt ruling under chapter 598 is highly

deferential. See Swan, 526 N.W.2d at 327. Under Swan, the trial court may

consider all the circumstances, not just whether a willful violation has been proven

in deciding whether to impose punishment for contempt. See id.; see also In re

Marriage of Jones, No. 17-1113, 2018 WL 2725371, at *1 (Iowa Ct. App. June 6,

2018) (discussing Swan). Even if the elements of contempt exist, the trial court

has discretion to determine whether the court should hold the contemner in

contempt. See id.

       Sydney testified Cody had not paid the attorney fees the court ordered

within the time ordered to pay, meeting her prima facie burden of showing Cody

violated the court’s order. Cody testified at trial he lacked the ability to pay Sydney

the court-ordered attorney fees at that time, explaining his monthly expenses

exceeded his net monthly income. He said would have paid them had he had the

ability to pay. He noted he had made a few payments since he was ordered to do
                                         18


so. The district court was not convinced and concluded “the evidence did establish

beyond a reasonable doubt that Cody was in willful and wanton disregard of that

temporary order by failing to pay the amount ordered or, at the very least, a

significantly greater amount than he has in fact paid.”

       Upon our de novo review, we find substantial evidence supports the trial

court’s determination that Cody willfully failed to pay the amount ordered by the

court. Although Cody presented evidence of financial hardship, there was also

evidence that Cody had been under employed over the summer and that Cody

was not paying all the expenses he claimed, which would have freed-up some

money to comply with the court’s order. Cody chose to favor his personal monthly

expenses, such as internet and telephone service, over his court-ordered

obligation to Sydney. If Cody could not pay, he should have notified the court and

requested the court’s ordered payment plan be revised or made other

arrangements for paying the ordered amount. Cody was not free to simply not pay

the amount ordered and do nothing. Upon our de novo review, we cannot say the

district court abused its discretion in finding Cody willfully and wantonly

disregarded its order and holding Cody in contempt under these facts.

       D. Trial Attorney Fees.

       Cody asserts the district court abused its discretion in awarding Sydney trial

attorney fees in the amount of $7500. The “abuse of discretion” standard is our

most deferential standard of review. See State v. Roby, 897 N.W.2d 127, 137

(Iowa 2017). “Trial courts have considerable discretion in awarding attorney fees.”

In re Marriage of Witten, 672 N.W.2d 768, 784 (Iowa 2003) (quoting In re Marriage

of Guyer, 522 N.W.2d 818, 822 (Iowa 1994)).           The fees must be fair and
                                           19


reasonable and whether they should be awarded depends on the respective

abilities of the parties to pay. See id.

       Upon our de novo review, we cannot say the district court abused its

discretion in its attorney fee award. The court considered the requisite factors. We

therefore affirm the award of attorney fees.

       E. Appellate Attorney Fees.

       Both parties request appellate attorney fees. “In a proceeding to determine

custody or visitation, . . . the court may award the prevailing party reasonable

attorney fees.” Iowa Code § 600B.26. “An award of appellate attorney fees is

within the discretion of the appellate court.” In re Petition of Fiscus, 819 N.W.2d

420, 425 (Iowa Ct. App. 2012) (citation omitted). In determining whether to award

attorney fees, we consider “the needs of the party making the request, the ability

of the other party to pay, and whether the party making the request was obligated

to defend the trial court’s decision on appeal.” Id. (citation omitted).

       Cody is not a prevailing party and is therefore not entitled to the award of

appellate attorney fees. After considering the appropriate factors, we decline to

award Sydney attorney fees. Any costs are assessed equally to the parties.

       III. Conclusion.

       Upon our de novo review of the entire record and considering the relevant

law, we conclude the district court did not err or abuse its discretion in admitting

the custody evaluator’s report into evidence. In any event, because our review is

de novo and consideration of the report is unnecessary to reach the issues present

here, we do not consider the report in our decision.
                                        20


       On the issues over sole legal custody, we reject Cody’s challenge to the

sole custody award for lack of adequate notice, and we agree with the court that

Cody’s actions show joint legal custody was not a viable option here. Additionally,

upon our review, we cannot say the district court abused its discretion in finding

Cody willfully and wantonly disregarded its prior ruling that ordered Cody to pay an

amount of Sydney’s attorney fees by a certain date. Finally, we cannot find the

district court abused its discretion in awarding Sydney trial attorney fees. For all

of these reasons, we affirm the district court’s custody ruling in all respects. We

decline to award appellate attorney fees. Any costs on appeal are assessed

equally to the parties.

       AFFIRMED.
