                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0729
                              Filed January 9, 2019


IN RE THE MARRIAGE OF HEATHER ANN ROCKWELL
AND NATHAN LEE ROCKWELL

Upon the Petition of
HEATHER ANN ROCKWELL,
      Petitioner-Appellee,

And Concerning
NATHAN LEE ROCKWELL,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Cerro Gordo County, Christopher C.

Foy, Judge.



       Nathan Rockwell appeals a decree dissolving his marriage to Heather

Rockwell. AFFIRMED.




       Judith O’Donohoe of Elwood, O’Donohoe, Braun, White, LLP, Charles City,

for appellant.

       Kristy B. Arzberger of Arzberger Law Office, Mason City, for appellee.



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


MULLINS, Judge.

           Nathan Rockwell appeals a decree dissolving his marriage to Heather

Rockwell. He argues the district court erred in: (1) including part of a business in

the marital estate, (2) declining to include alleged liabilities in the marital estate,

(3) deciding the physical care issue before hearing all of the evidence, (4)

misjudging the credibility of the parties and failing to consider Heather’s alienating

conduct in reaching its physical care determination, (5) crafting the visitation

schedule, and (6) declining to reopen the record after trial. Heather requests an

award of appellate attorney fees.

I.         Background Facts and Proceedings

           Affording great deference to the district court’s factual findings and thorough

credibility determinations1 in our de novo review of this equitable proceeding, we

make the following factual findings.




1
     The district court provided the following credibility findings:
          The Court harbors no illusions that either party was totally truthful on the
          witness stand. It found Heather to be less than forthcoming in certain
          aspects of her testimony, particularly when describing what she perceived
          as character flaws or bad behavior on the part of Nathan or responding to
          unfavorable evidence regarding situations or events that might reflect
          negatively on her fitness as a parent. The Court likens her shading of the
          truth to the puffery that a salesperson might use when selling a used car
          and adjusted the weight that it gave to the testimony of Heather
          accordingly.
                   The disregard for the truth shown by Nathan in his testimony rivals
          the most blatant and extreme that the Court has ever observed. . . .
                   ....
                   The efforts undertaken by Nathan to deceive the Court regarding
          his ownership of Sure Service and the existence of bogus debts entirely
          destroyed his credibility. In preparing its decree, the Court gave no weight
          to the testimony of Nathan regarding any of the financial matters in dispute
          between the parties and very little weight to his testimony in matters
          pertaining to the children.
                                           3


       The parties married in 2008. The marriage produced two children, born in

2009 and 2011. At the time of trial, Heather was thirty-nine years of age and

Nathan was forty-one. Prior to and early in the marriage, Heather worked for a cell

phone company. Nathan did not like Heather working nights and weekends, so he

recommended that she become a stay-at-home mom. Heather did so in 2010.

She continued to be a stay-at-home mom until September 2016, after the parties’

separation, when she obtained a position as a merchandiser for a beverage

distributor earning twelve dollars per hour and working between twenty-five and

thirty hours per week. She continued to hold this position at the time of trial. She

has a flexible work schedule and is allowed to set her own hours, thus providing

her the ability to work around the children’s schedules. Nathan conceded in his

testimony Heather is a good mother and loves the children. It is undisputed that

Heather has been the historical caregiver for the children, while Nathan assumed

a more traditional role of providing for the family financially.

       One of the major issues in this appeal is whether Nathan owns Sure

Service, the heating, air conditioning, and refrigeration business he works for. He

holds himself out as the owner of the business; he maintains business cards that

designate him as the owner; he claims the income of the business on his tax

returns and listed himself as the proprietor of the business on his returns for tax

years 2005 through 2015; and his name is on the company’s billings. He also

writes off a number of his personal expenses as expenses for the business.

Nathan’s work schedule is more demanding than Heather’s. He leaves for work

at 7:00 a.m. and sometimes does not get home until 10:00 p.m. He is always on

call to respond to emergency service requests.
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       The parties separated in April 2016. The parties differed substantially in

characterizing the circumstances surrounding the parties’ separation. Heather

alleged numerous instances of threatening, aggressive, and controlling behavior

toward Heather and the children by Nathan; and Nathan implied infidelity and

alcohol and drug problems on the part of Heather. Both parties’ testimony supports

a conclusion the tension in the marital home was on the rise before the parties

separated.

       According to Heather’s testimony, the separation was a result of her older

daughter’s report to Heather that she was scared of Nathan because Nathan made

a threatening statement to her. Upon this report, Heather left the marital home

with the children and drove to the sheriff’s department. Nathan’s position is that

there was no threatening statement on the day in question, and Heather essentially

just left with the children. Heather filed a petition for relief from domestic abuse

upon the recommendation of law enforcement, alleging past abuse and

threatening behavior on the part of Nathan and noting the children were afraid of

him. The petition was ultimately denied.

       Heather filed her petition for dissolution of marriage in May. A temporary

matters order was entered in June, placing the children in the shared physical care

of the parties, with each parent to have the children in their care every other week.

The order also required that “[i]f a party is unable to supervise the children for a

period exceeding four hours, the other parent shall be given first priority of

providing child care.” On many occasions, Heather communicated her desire to

care for the children while Nathan is at work. Instead of granting these requests,

Nathan would have others care for the children while he worked. Nathan’s mother,
                                         5


Mary, would often care for the children during Nathan’s parenting time. The

children regularly spent the night with Mary when they were supposed to be with

Nathan. Nathan largely neglected to take the children to their activities or medical

and counseling appointments during his visitation time throughout the pendency

of the proceedings.

       There is evidence in the record, whether credible or not, that since the

inception of these proceedings, both parties have made efforts to alienate the other

from the children—Heather potentially coaching the children to make statements

reflecting their preference of Heather as a custodial parent; and Nathan continuing

to engage in aggressive behavior toward Heather and the children, limiting

Heather’s contact with the children while they are in his care, continuously fueling

his apparent rage for Heather, and refusing to meaningfully communicate with her

about the children’s welfare. In response to a question by his attorney on direct

examination, apparently in support of his request for shared physical care, Nathan

confirmed “all the hard feelings and resentment [were] gone,” and the parties were

able to effectively communicate with one another about the children. We reject

this factual assertion. The record is clear that Nathan harbors nothing but hatred

and disdain for Heather, is unwilling to communicate with her about the children,

and is ill-equipped to support Heather’s relationship with the children. Although

there is some evidence—again, whether credible or not—that Heather may have

coached the children into saying negative things about Nathan to better her

position on the question of physical care, what is clear is that Heather has been

more than willing to initiate communication with Nathan relative to co-parenting the

children, she wants Nathan to be involved in the children’s lives, and she has gone
                                          6


out of her way to make sure Nathan has every opportunity to do so. Heather tries

to limit her communications with Nathan about the children to text messages, as

Nathan is verbally abusive and calls Heather horrendous things when contact is

made over the phone. A small sample of the parties’ communications over the

phone was admitted as evidence at trial. An audio recording of an October 2016

telephone call between the parties is quite telling of Nathan’s motivations during

these proceedings—Nathan stated he likes arguing with Heather and hates her,

noted he does not care about his time with the children, indicated he does not care

about having visitation time with the children, and advised Heather she could have

the kids if she just “signed the papers.” This indicates to us that Nathan cared

more about settling the financial matters involved in these proceedings than he did

about securing time with his children. In this phone call, Heather responded, “It

would be nice if you could be actively involved in their lives.”

       The children are involved in various activities. Heather signs them up, pays

for, and attends the activities. Heather also schedules and attends the children’s

medical and dental appointments. Nathan has attended one such appointment at

most since the children were born. Heather is heavily involved with the children’s

schooling. Nathan is not.

       The matter was submitted to the court following a four-day trial held in

February and May 2017. In December, Nathan filed a motion to reopen the record,

citing newly discovered evidence from the children’s new counselor. Nathan filed

a second motion on the same grounds in February 2018. The court entered its

decree in March, and, among other things, denied Nathan’s motions to reopen,

granted the parties joint legal custody of the children, found a shared physical care
                                          7


arrangement would be unworkable and awarded Heather physical care of the

children, set a visitation schedule for Nathan, and divided the parties’ assets. The

court denied the parties’ competing post-trial motions to reconsider, enlarge, or

amend pursuant to Iowa Rule of Civil Procedure 1.904(2). As noted, Nathan

appeals.

II.    Standard of Review

       Review of dissolution cases is de novo. Iowa R. App. 6.907; In re Marriage

of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). As noted, 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); In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Because the court bases

its decision on the unique facts of each case, precedent is of little value. In re

Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009).

III.   Property Distribution

       A.     Business as Part of Marital Estate

       Nathan’s first contention on appeal is that the district court erred in

concluding Nathan is the owner of Sure Service and therefore including part of the

business in the marital estate. Aside from only citing to a number of non-binding

and inapplicable authorities, Nathan seems to argue the court’s determination was

unsupported by the evidence presented. Upon our de novo review of the record

as summarized above, and affording deference to the factual findings and

credibility determinations of the district court, we agree with the district court’s

finding that Nathan is the owner of the company.
                                         8


       Nathan also complains the court made no “attempt to arrive at a realistic

value for Sure Service.” In its decree, the court fully acknowledged there was

insufficient information in the record to ascertain the value of the business on the

date of the marriage, but proceeded to do so upon the evidence presented. Both

parties presented evidence concerning the value of the business’s assets, but no

evidence was produced concerning the business’s liabilities, assuming any

existed. Having concluded Nathan owns the business, the court was required to

divide it. See Iowa Code § 598.21(1) (2016). The court did so upon the evidence

presented, and set aside half of the value of the business for Nathan as premarital.

See id. § 598.21(5)(b). Nathan knew his ownership of Sure Service was a disputed

issue and he could have presented evidence concerning the business’s liabilities,

if any, but he did not do so. Having reviewed the evidence presented, we find the

court’s valuation of the business was within the range of evidence—and actually

fell on the lower end of the permissible range—and therefore do not disturb it. See

In re Marriage of Keener, 728 N.W.2d 188, 194 (Iowa 2007).

       Next, Nathan seems to argue that profits he received from Sure Service

were gifts from his parents and therefore excludable as marital property. Ignoring

that such an argument would require that the business be owned by his parents

and that such an argument was not raised below, we reject the argument upon

Nathan’s acknowledgement that “There is no information in the record that show[s]

that a specific gift was made . . . to Nathan.” Regardless of who owned the

business, the profits Nathan received could not be considered a “gift from his

parents.” It is undisputed Nathan worked for the business. Any profits he received

amounted to compensation, not gifts.
                                          9


       B.     Nathan’s Alleged Liabilities

       Next, Nathan argues the court erred in declining to include alleged liabilities

in the marital estate. As to the supposed liabilities, he maintains “there is credible

evidence to support his assertion” these liabilities exist. However, as the district

court noted, the evidence presented at trial renders Nathan’s liability-related

assertions wholly non-credible.     For example, in response to interrogatories,

Nathan reported that as of October 2016, he owed $65,000 to Custom Concrete,

which is owned by his brother Mike Reindl; $205,000 to Brock Specialties, which

is owned by his close friend Adam Brock; $25,000 to Orton Landscaping, which is

owned by another close friend Mark Orton, $7500 to another close friend Rodney

Helps; and approximately $400,000 to his mother. Then, in his affidavit of financial

status filed shortly before trial, Nathan listed a “loan from mother” in the amount of

$500,000 as his only debt. Then, at trial mere weeks later, Nathan alleged he

owed $10,700 to Floyd and Leonard Auto Electric, $290,000 to Brock Specialties,

$101,810 to Custom Concrete, $33,050 to Orton Landscaping, and “[p]robably

couple hundred thousand” to his mom. He later testified on cross-examination,

“Well, I think that I got most of that debt paid off with [mom] . . . but I’m not 100

percent sure.” Later, he testified he has only paid his mother about $40,000 on

the debt. Even later, he stated he does not know how much he owes his mother.

       Nathan also submitted an invoice from another of his friends, a plumber

named Cole Davison, in the amount of $14,020, apparently to apprise the court of

yet another debt. But he admitted on cross-examination that he only paid around

$2000 for those services because he did most of the work himself, and that amount

was already paid off. Davison testified at trial and agreed Nathan promptly paid
                                           10


him for his services in full roughly a year before trial in the amount of just under

$2000. Davison also testified Nathan requested him to create a fake invoice for

services for use as evidence at trial. Davison initially declined, knowing it was

wrong, but after continued pressure by Nathan, he provided Nathan with the “fake”

invoice in the amount of $14,020. Helps also testified Nathan does not owe him

any money.

        Nathan’s mother and the proprietors of Brock Specialties and Custom

Concrete were subpoenaed to provide documentation concerning the debts and

to appear at trial to testify; none of them provided any documentation. Only

Nathan’s brother appeared to testify at trial, and his testimony was not believable.

Finally, and perhaps most troubling, Nathan knowingly excluded cash in the

amount of $448,964 from the affidavit of financial status he presented to the court

prior to trial.

        We find the court’s conclusion that Nathan owns Sure Service and the

valuation of the same to be supported by the evidence. We agree with the district

court’s conclusion that Nathan presented no credible evidence to prove the validity

of his alleged debts. Having considered the issues raised, we affirm the district

court’s property distribution.

IV.     Physical Care and Visitation

        A.        Consideration of Evidence

        First, Nathan argues the district court abused its discretion by improperly

deciding the physical care issue after the first day of the four-day trial in this matter.

Nathan implies the court advised the parties after the first day of trial that it decided

the issue upon the close of evidence that day, but notes “the operative discussion
                                          11


was held in the chambers off the record.” His claim is belied by the fact the parties

continued presenting evidence relevant to the custody determination for the

remainder of the four-day trial. In addition, on the third day of trial, during redirect

examination of Nathan, Heather’s counsel objected to discussion of certain matters

that were obviously aimed at the physical care issue. The court overruled the

objection, stating, “Generally, in custody cases we try to hear as much as we can

from the parties.” The court also overruled an objection to a custody-related exhibit

on the ground that the exhibit was being offered for rebuttal purposes on the issue

of custody. Nathan also complains the court refused to consider “new information

presented, including the [Department of Human Services’] report.” We find the

complaint meritless, as the district court considered testimony concerning the

subject report and admitted the report itself into evidence. Although the court did

not specifically reference the DHS report in the decree, such does not mean it did

not consider it in making its determination. See In re Marriage of Thompson, No.

17-0481, 2017 WL 6026727, at *4 (Iowa Ct. App. Nov. 22, 2017). Finally, no record

of the supposed chambers discussion was made at the time of trial; we therefore

must reject the challenge. See In re F.W.S., 698 N.W.2d 134, 135 (Iowa 2005).

       The record does not support Nathan’s claim the court reached its decision

on physical care after only the first day of trial. We therefore reject Nathan’s

challenge.

       B.     Physical Care

       Nathan seems to argue the court erroneously misjudged the credibility of

the parties and mistakenly viewed Heather’s testimony as truthful. At the same

time, he points to passages in the court’s decree which affirmatively indicate the
                                       12


court had reservations about the credibility of some aspects of Heather’s

testimony. In any event, Nathan cites no legal authority to support his argument.

As such, we deem the argument waived. See, e.g., Iowa R. App. P. 6.903(2)(g)(3)

(“Failure to cite authority in support of an issue may be deemed waiver of that

issue.”); Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“In a case of this

complexity, we will not speculate on the arguments [a party] might have made and

then search for legal authority . . . to support such arguments.”); Inghram v.

Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974) (“To reach the merits

of this case would require us to assume a partisan role and undertake the

appellant’s research and advocacy. This role is one we refuse to assume.”).

      Nathan also suggests “the trial court underestimate[d] the ongoing efforts

by Heather to alienate the children from” Nathan. We agree with Nathan that the

court was required to consider such matters, see Iowa Code § 598.41(1)(c), but

we disagree with him that the court failed to honor the requirement. The court

noted its “concerns about awarding either party physical care,” and specifically

highlighted its “reservations about making Heather the custodial parent,” noting,

among other things, it was “troubled by the dismissive attitude displayed by

Heather towards Nathan and the role he plays in the lives of their daughters” and

“Heather has not properly supported and encouraged the relationship between

Nathan and the children.” Nathan fared no better, however, and weighing the

pertinent factors, the court concluded a shared physical care arrangement would

be unworkable and the children’s best interests would be served by being placed

in Heather’s physical care. We reject Nathan’s argument that the court failed to

recognize or consider Heather’s alienating conduct.
                                           13


       C.     Visitation

       “A noncustodial parent should be awarded liberal visitation in order to afford

the children the opportunity to maximize continuing physical and emotional contact

with both parents.” In re Marriage of Farrell, 481 N.W.2d 528, 531 (Iowa Ct. App.

1991). “Although liberal visitation is the benchmark, our governing consideration

in defining visitation rights is the best interests of the children, not those of the

parent seeking visitation.” In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa

Ct. App. 1994). The district court awarded Nathan regular and liberal visitation

with the children: every Tuesday evening, every other weekend, four weeks during

the summer, one half of winter break, and alternating spring breaks and holidays.

On appeal, Nathan argues he “should be granted more liberal visitation to allow

him to counteract the negative brainwashing that the children are likely to continue

to receive from” Heather and he should have at least six weeks of visitation in the

summer.

       Upon our de novo review of the record, we are not convinced increasing

Nathan’s visitation would be in the best interests of the children. In light of Nathan’s

busy work schedule and the fact that the children spent much of their time being

cared for by people other than Nathan during his parenting time under the

temporary matters order, we find the district court’s visitation schedule promotes

the goal espoused by section 598.41(1)(a). The schedule provides Nathan with

liberal visitation and is not unreasonable.2 Additionally, under the decree, the


2
  Cf. In re Marriage of Gulsvig, 498 N.W.2d 725, 726–72 (Iowa Ct. App. 1993) (ordering
visitation schedule to include every other weekend, alternating holidays, and two to four
weeks in the summer); In re Marriage of Stepp, 485 N.W.2d 846, 850 (Iowa Ct. App. 1992)
(ordering visitation schedule including mid-week visitation; alternating weekends,
                                           14


parties are free to agree to additional visitation beyond the minimum amount, and

we are hopeful that the hostility between these parties will wane as soon as this

matter is put to bed. We affirm the visitation schedule decreed by the district court.

V.     Reopening of the Record

       Finally, Nathan argues the district court improperly declined to reopen the

record to allow the presentation of newly discovered evidence from the children’s

new counselor. We review the district court’s decision on whether to reopen the

record for an abuse of discretion, our most deferential standard of review. See

State v. Long, 814 N.W.2d 572, 575–76 (Iowa 2012); Sun Valley Iowa Lake Ass’n

v. Anderson, 551 N.W.2d 621, 634 (Iowa 2006); see also State v. Roby, 897

N.W.2d 127, 137 (Iowa 2017).

       Here, the matter was submitted in May 2017. Nathan filed motions to

reopen the record in December 2017 and February 2018. In both motions, Nathan

alleged the children’s new counselor, who the children started seeing after trial,

concluded Heather had coached the children and requested a DHS investigation

relative to whether Heather was subjecting the children to mental and emotional

abuse. The second motion included a letter from the counselor which noted

Heather says negative things about Nathan and coached the children to make

false statements about Nathan, and recommended that the children be placed in

Nathan’s care. The ensuing DHS investigation was “unfounded.” In its decree,



birthdays, and holidays; and four weeks out of the summer); In re Marriage of Drury, 475
N.W.2d 668, 671 (Iowa Ct. App. 1991) (finding four weeks of summer visitation, in addition
to regular visitation, to be sufficient to assure the child the opportunity for maximum
continuing physical and emotional contact with both parents); In re Marriage of Lacaeyse,
461 N.W.2d 475, 477 (Iowa Ct. App. 1990) (ordering visitation schedule to include every
other weekend and four hours of mid-week visitation).
                                           15


the court noted it was troubled by the allegations, but stated finalizing the

dissolution and implementing a permanent physical care arrangement would be in

the best interests of the children. Upon our de novo review, we are unable to say

the district court exercised its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. The record indicates that the

pending status of these proceedings is what has been causing the acrimony

between these parties, each trying to gain the upper hand over the other by

manufacturing evidence against one another before the matter becomes final. In

any event, the conduct alleged to have been engaged in by Heather in the motions

to reopen was largely cumulative of the conduct she was alleged to have engaged

in at the time of trial. There was already evidence in the record that Heather was

potentially engaging in this kind of conduct and the court recognized and

considered it along with the remaining evidence. Given the cumulative nature of

the evidence, a denial of the motions to reopen was not improper. See Godar v.

Edwards, 588 N.W.2d 701, 710 (Iowa 1999); Moser v. Stallings, 387 N.W.2d 599,

603 (Iowa 1986); In re Marriage of Franzen, No. 03-1031, 2004 WL 899518, at *2

(Iowa Ct. App. Apr. 28, 2004).

VI.    Attorney Fees

       Heather requests an award of appellate attorney fees.               An award of

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

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

whether to award attorney fees, we consider the needs of the party making the

request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the district court’s decision on appeal. Id. In
                                        16


consideration of these factors, we decline to award attorney fees in this appeal.

Costs on appeal are assessed to Nathan.

VII.   Conclusion

       We affirm the decree dissolving the parties’ marriage in its entirety. Costs

on appeal are assessed to Nathan.

       AFFIRMED.
