                    IN THE COURT OF APPEALS OF IOWA

                                 No. 18-0884
                             Filed March 6, 2019


IN RE THE MARRIAGE OF HEATHER M. MONAT
AND BENJAMIN LEE MONAT

Upon the Petition of
HEATHER M. MONAT,
      Petitioner-Appellee,

And Concerning
BENJAMIN LEE MONAT,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Linda M.

Fangman, Judge.



      Benjamin Monat appeals from the decree dissolving his marriage to Heather

Monat. AFFIRMED AS MODIFIED.



      Heather A. Prendergast of Roberts, Stevens & Pendergast, PLLC,

Waterloo, for appellant.

      Danni J. Harris of Hope Law Firm, PLC, West Des Moines, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.
                                         2


McDONALD, Judge.

       This case arises out of the dissolution of the marriage of Heather and

Benjamin (Ben) Monat. In this appeal, Ben challenges the district court’s award of

physical care of the children to Heather, the division of the parties’ property, and

the award of spousal support to Heather. Heather requests an award of appellate

attorney fees.

                                         I.

       The record reflects the following. The parties married in December 2007.

Prior to the marriage, but after the parties’ engagement, Ben purchased a house

from his grandmother outside Independence, Iowa. Ben and Heather lived in the

house after the marriage and improved it over time.

       At the time of the marriage, Heather had just completed her undergraduate

studies and began graduate school, studying speech pathology. Ben worked for

John Deere. Eventually Ben completed a bachelor’s degree and MBA paid for by

John Deere.

       The couple’s first years of marriage were marked by moments of contention.

Heather wanted to live in Cedar Falls rather than the Independence area. The

couple disagreed about where Heather should complete her practical experience

requirements for her graduate program.          On one occasion, after a sharp

disagreement regarding the issue, Heather tried to drive away from the home. Ben

stopped her. He later characterized his efforts as protective. He stated he carefully

rotated Heather’s legs around and out of the car as she sat in the driver’s seat. He

stated he then stood her up so he could embrace her to calm her down as he would

a child. Heather remembers the event differently. She recalled Ben angrily and
                                         3


forcefully pulled her out of her car as she tried to hold onto her steering wheel.

Following this event, the parties’ parents became involved. Heather’s mother

encouraged her to make the relationship work. Because Heather did not believe

in divorce, she returned to the marital home.

      Two children were born into the marriage: G.M. in 2013 and I.M. in 2014.

At the time of G.M.’s birth, Heather worked full-time as a speech pathologist.

However, the parties mutually agreed she should reduce her work schedule

following G.M.’s birth. Around the same time, the couple moved to Cedar Falls at

Heather’s urging; they used the proceeds from the sale of their first home to

purchase their Cedar Falls home.       The parties’ relationship did not improve

following the move. Heather kept a personal bag stored at a neighbor’s house

should she need to flee the home. Heather provided most of the care for G.M.,

and Ben continued to excel at work. Following I.M.’s birth, Heather further reduced

her work schedule at the parties’ mutual agreement. They intended Heather would

work only part-time until the children entered elementary school. When Heather

worked, the children attended daycare.

      G.M. began having problems with peer interaction at daycare. Heather

became concerned G.M. was mirroring Ben’s behavior.           Ben often became

frustrated with G.M. and would yell at him when he did not immediately comply

with instructions. As a result, Heather sought play therapy for G.M. with Ben’s

approval. The play therapist diagnosed G.M. with an adjustment disorder with

anxiety. The therapist also met with Heather and Ben. Through therapy, Ben

became aware that G.M. was more attached to Heather because G.M. was fearful

of him. Ben admitted he yelled at G.M. too much and became frustrated easily
                                         4


with him. Ben worked toward developing new parenting techniques to improve his

relationship with G.M.    The therapist’s notes indicate Ben made significant

progress and his relationship with G.M. improved.

       The record reflects an alleged incident of child abuse against Ben. In March

2017, Ben was bathing G.M. one evening. Heather remembers that G.M. splashed

around, but she also remembers G.M. crying out that Ben hurt and pinched him.

The following morning, Heather observed several bruises on G.M.’s leg. Heather

photographed the bruises. She packed up the children and took them to her

parent’s home. She and her mother took G.M. to his doctor’s office so that G.M.’s

leg could be examined. Heather recounted her version of the prior night’s events.

As a result, the doctor contacted the Iowa Department of Human Services

(“IDHS”). Ben stated G.M. splashed around and Ben put his hand up to prevent

G.M. from splashing him and directed G.M. to stop splashing. IDHS investigated

and confirmed the incident as abuse but declined to place Ben on the Central

Abuse Registry. Ben then appealed. Heather sought to intervene in the appeal

but was denied. On appeal, IDHS found the incident was not confirmed as abuse

and reiterated that Ben would not be placed on the abuse registry.

       Heather sought a temporary restraining order against Ben and filed her

petition for dissolution. Ben was notified and instructed to leave the marital home.

He complied, and the parties mutually agreed to a restraining order that permitted

Heather to remain in the home with the children and limited the parties’ contact to

(1) text or email communication regarding the children, (2) attendance at G.M.’s

therapy, (3) attendance at G.M.’s weekly gymnastics class, and (4) bringing the

children to the other parent’s front door when dropping off the children. The
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agreement limited Ben’s time with the children to two hours on Monday evenings

and four hours on Saturdays.

       By June 2017, the district court entered an order on temporary matters in

the dissolution proceeding. The court found Ben “has always been a very active

participant with the children and their events and has been trusted by [Heather] to

care solely for both children while [she] goes on extended vacations without the

children and [Ben].” The court then awarded the parties joint physical care of the

children. The court permitted Heather to stay in the marital home and required

Ben continue to pay the mortgage and other monthly expenses, including

groceries, utilities, and gas. The court ordered that Ben provide Heather access to

his health spending account to cover the children’s medical expenses. It also

ordered Ben pay Heather monthly child support.

       In late August or early September 2017, Ben and Heather had a joint

account to be used for Heather to purchase groceries, but Ben closed the account

after Heather used account funds to purchase two tires for her car. She reasoned

her use of this account was reasonable because she regularly deposited a mileage

reimbursement check from her employer into the account for such expenses. Ben

also removed Heather from a Quik Star gas account and removed her from the

health spending account. In October, Ben had the home’s utilities transferred to

Heather’s name. As a result, Heather was using income from her part-time job to

pay the utilities, the children’s out-of-pocket medical expenses, groceries, gas, and

other living expenses.

       In October, Heather sought out another therapist for G.M. Ben resisted and

contacted G.M.’s past therapist for her assistance, detailing his difficulties with
                                          6


Heather. The new therapist eventually treated G.M. and also diagnosed him with

an adjustment disorder with anxiety. The new therapist’s notes do not mention

any aggressive behavior from Ben directed at G.M.

       The dissolution proceeding was tried in January 2018 over three days.

During the trial, Ben paid Heather for several months of unpaid child support. Both

Heather and Ben testified. Ten other people also provided testimony. They

include members of both Heather and Ben’s families, their friends, and their former

babysitter (a friend of Ben’s family). The witnesses provided conflicting testimony

about Ben’s parenting skills, past involvement with the children, and temperament.

All generally agreed Heather is a good mother. The court declined Ben’s request

for joint physical care of the children and instead granted Heather physical care of

the children. It evenly divided the parties’ property, ordering Ben to make an

equalization payment to Heather. Finally, the court awarded Heather spousal

support in the amount of $1000 per month until September 2020 so that she may

continue to work part-time until both children are in school as the parties

contemplated prior to separation.

                                         II.

       This court reviews dissolution proceedings de novo. In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “Although our review is de novo,

we afford deference to the district court for institutional and pragmatic reasons.”

Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). We will not modify

a dissolution decree unless the district court failed to do equity. See In re Marriage

of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); In re Marriage of Graves, No. 13-

1426, 2014 WL 3511879, at *2 (Iowa Ct. App. July 16, 2014).
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                                           A.

       We first address Ben’s challenge to the district court’s physical care

decision. In making the physical care determination, the court considers what

“environment [is] most likely to bring [the children] to health, both physically and

mentally, and to social maturity.” In re Marriage of Hansen, 733 N.W.2d 683, 695

(Iowa 2007). When a parent requests joint physical care and the court refuses to

award joint physical care, the court must provide specific justification for its refusal.

See Hensch, 902 N.W.2d at 825. However, this requirement “does not create a

presumption in favor of joint physical care.” Id. (quoting In re Marriage of Fennelly,

737 N.W.2d 97, 101 (Iowa 2007)). When considering whether joint physical care

is in the children’s best interest, the court considers four factors:

       (1) “approximation”—what has been the historical care giving
       arrangement for the child between the two parties; (2) the ability of
       the [parties] to communicate and show mutual respect; (3) the
       degree of conflict between the parties; and (4) “the degree to which
       the parents are in general agreement about their approach to daily
       matters.”

Id. at 824-25 (quoting In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App.

2007)). The court may also consider any other relevant factors. See In re Marriage

of Determan, No. 10-0732, 2011 WL 444150, at *3 (Iowa Ct. App. Feb. 9, 2011)

(describing the four factors as nonexclusive).

       On de novo review, we affirm the district court’s physical care determination.

The parties’ historical caregiving practices show the best interest of the children is

advanced by awarding Heather physical care of the children and granting Ben

liberal visitation. While it is true the temporary order set forth a joint physical care

arrangement, that arrangement deviated from the parties’ historical care-giving
                                         8


arrangement. Upon mutual agreement of the parties, Heather reduced her work

commitments to care for the children.        While Ben worked, Heather primarily

focused on the children.     Heather took the children to most of their medical

appointments. She also arranged for G.M.’s therapy. Heather has served as the

family’s primary point of contact with the children’s daycare provider. The parties’

temporary arrangement was relatively short-lived when compared to their past

caregiving practices. Approximation thus favors awarding Heather physical care.

See Hansen, 733 N.W.2d at 696-97.

       The remaining Hansen factors inveigh against an award of joint physical

care. The parties’ inability to communicate and show mutual respect weighs

against joint physical care. See id. at 698. Text messages between the parties

show they can communicate on some issues but have difficulty communicating

when facing atypical or more significant issues. The level of conflict between Ben

and Heather also weighs against joint physical care. See id. Heather believes

Ben abused her, but Ben disagrees. The abuse, and the parties’ disagreement of

whether there was in fact any abuse, has created significant conflict and animosity

between the parties. Finally, Heather and Ben disagree regarding fundamental

parenting issues, which is at odds with a shared physical care arrangement. See

id. at 699. The therapist’s notes specifically state: “Both parents report that they

have different views on parenting.” This is exemplified in their differing approaches

to correcting the children and their views on where the children should attend

school.

       In addition to the four factors provided in Hansen, the court may also

consider any other relevant factor. See Determan, 2011 WL 444150, at *3. Here,
                                         9


we find it significant the parties attempted a joint physical care arrangement

pursuant to the order on temporary matters, and the arrangement did not work well

for the children. The children were often confused and did not know when they

were to go with each parent. G.M. began acting aggressively toward his sister,

friends, and the family dog. I.M. became upset whenever she was forced to leave

her mother or when her mother did something without her.

       We affirm the district court’s physical care determination.

                                         B.

       Ben argues the district court erred in its division of property in several

respects. First, he argues the court erroneously considered land he owned prior

to the marriage when determining the property distribution. Second, he argues the

court erred in failing to offset equity he accrued in the first family home he bought

prior to the marriage. Third, he argues the court erred in its division of his annual

bonus. Fourth, he argues the court failed to consider the back child support

payments Ben made during trial when dividing the property.

       “Iowa is an equitable distribution state.” McDermott, 827 N.W.2d at 678.

“Although an equal division is not required, it is generally recognized that equality

is often most equitable.” In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa

2005). In effort to divide property equitably, the court considers the following

factors:

       a. The length of the marriage.
       b. The property brought to the marriage by each party.
       c. The contribution of each party to the marriage, giving appropriate
       economic value to each party’s contribution in homemaking and child
       care services.
       d. The age and physical and emotional health of the parties.
                                       10


      e. The contribution by one party to the education, training, or
      increased earning power of the other.
      f. The earning capacity of each party, including educational
      background, training, employment skills, work experience, length of
      absence from the job market, custodial responsibilities for children,
      and the time and expense necessary to acquire sufficient education
      or training to enable the party to become self-supporting at a
      standard of living reasonably comparable to that enjoyed during the
      marriage.
              ....
      i. Other economic circumstances of each party . . . .
      j. The tax consequences to each party.
              ....
      m. Other factors the court may determine to be relevant in an
      individual case.

Iowa Code § 598.21(5) (2017). One party’s greater need for assets may warrant

a larger property award. See Rhinehart, 704 N.W.2d at 684.

      Ben argues the court erred in considering certain premarital property when

making the property division. He argues the court should not have considered his

ownership of a parcel of CRP land, which he and his brothers purchased prior to

the marriage, when reaching a property-distribution determination.      Ben also

argues the district court should have should have set aside the down payment he

made for the couple’s first home and should have set aside the difference between

the home’s purchase price and its fair market value prior to dividing the marital

property.

      We have considered Ben’s arguments with respect to both issues, and we

decline to modify the property division. Ben acknowledges premarital property can

be considered in the property division in dissolution proceedings. See Iowa Code

§ 598.21(5)(b). When considering the factors enumerated in Iowa Code section

598.21(5), it becomes apparent an equal division of the assets, including the

premarital property, is equitable here. While this was not a long marriage, it was
                                          11


not a short marriage either. Both parties contributed to the family’s prosperity. Ben

provided a healthy income from his job and Heather brought in income, kept the

home, and provided extensive child care. Certainly Heather benefitted from the

couple paying off her student-loan debt, but Ben benefitted from Heather’s support

as he attended undergraduate and graduate school during the marriage. Both are

well educated, but Heather’s earning capacity is compromised from her absence

from the fulltime job market at the parties’ mutual agreement. The district court

correctly concluded Ben and Heather should exit the marriage with equal assets.

The court did equity in placing the parties on equal footing upon exiting the marital

relationship. See Fennelly, 737 N.W.2d at 102 (“[I]t is generally recognized that

equality is often most equitable.” (quoting Rhinehart, 704 N.W.2d at 683)).

       Ben also contends the district court’s calculations are in error because the

district court failed to make certain offsets related to the division of Ben’s annual

bonus and related to Ben’s payment of past due child support during trial. In

reviewing the district court’s division of property, we conclude the property division

was within the range of evidence and was equitable under the facts presented.

We decline to disturb the district court’s property division.

       For these reasons, we affirm the district court’s property division.

                                          C.

       We next address Ben’s challenge to the spousal support award. The district

court awarded Heather spousal support in the amount of $1000 per month until

September 2020, when I.M. begins school. The district court did not classify the

spousal support award. Ben cites to Heather’s equal property award and the fact

that she can remain in the marital home until its sale (while Ben pays the mortgage,
                                         12


insurance, and property tax) as reasons negating the need for spousal support.

See Iowa Code § 598.21A(1)(c) (stating the court shall consider the distribution of

property when awarding spousal support). He notes she is able to work fulltime

and currently is not. He also argues Heather does not qualify for any of the

recognized forms of spousal support and could support herself if she chose to go

back to work fulltime.

       Spousal support is not a matter of right. The award of spousal support

depends of the circumstances of each case. See In re Marriage of Gust, 858

N.W.2d 402, 408 (Iowa 2015). The three commonly accepted forms of spousal

support are traditional, rehabilitative, and reimbursement. See id. A lesser known

form of spousal support is transitional support. See, e.g., In re Marriage of Hansen,

No. 17-0889, 2018 WL 4922992, at *16 (Iowa Ct. App. Oct. 10, 2018) (McDonald,

J., concurring specially); In re Marriage of Lange, No. 16-1484, 2017 WL 6033733,

at *3 (Iowa Ct. App. Dec. 6, 2017) (“Jessica does not need traditional rehabilitative

support so much as transitional support while finding suitable employment.”).

       None of the generally-recognized forms of spousal support are applicable

here. Traditional support is inapplicable here. The marriage here fell well short of

the twenty-year durational threshold.         See Gust, 858 N.W.2d at 410-11.

Rehabilitative is also inapplicable because Heather needs no re-education or

training to obtain employment; she already has her graduate degree and sufficient

work experience to reenter the labor market. See In re Marriage of Becker, 756

N.W.2d 822, 826 (Iowa 2008). Reimbursement support does not apply. Although

Ben obtained his degrees over the course of the marriage, he did so at no cost

and did not recently graduate. See id. Transitional support is also inapplicable
                                         13


here. The district court’s award was not intended to assist Heather in overcoming

the economic dislocations associated with dissolution of the marriage. Instead,

the district court awarded support to allow Heather to continue with the parties’

historical care-giving practices until the younger child started school.

       Under the circumstances, it was inequitable for the district court to award

spousal support.

       We should not be quick to recognize new categories of spousal
       support. Nor should we be too lax in applying the generally-
       recognized categories to the facts of a particular case. Among the
       galaxy of cases, the generally-recognized categories of support are
       constellations providing guidance in navigating the otherwise
       uncharted waters of spousal support.

In re Marriage of Baccam, No. 17-1252, 2018 WL 5850224, at *10 (Iowa Ct. App.

Nov. 7, 2018) (McDonald, J., concurring in part and dissenting in part).

       [I]f one spouse has a financial need, the next question should not be
       whether the other spouse has the ability to pay. Instead, the next
       question should be whether the facts and circumstances of the case
       are such that it would be equitable to require the other spouse to
       satisfy the need. The answer to that question is derived from looking
       at the constellation of principles embodied in the traditionally-
       recognized forms of spousal support. Only if one or more of the
       generally-recognized categories is applicable, i.e., only if it would be
       equitable to require spousal support, should we ask the question of
       whether the other spouse has the ability to satisfy the recipient
       spouse’s need.
               Here, there are no generally-recognized categories of spousal
       support applicable to the case at hand. There are no extraordinary
       circumstances justifying the departure from the traditional categories
       of spousal support. It is not equitable to force one spouse to
       subsidize a former spouse merely because he or she can. This is
       particularly true where, as here, the recipient spouse is voluntarily
       underemployed.

Id. It does not matter that the parties’ mutually agreed upon Heather’s intentional

withdrawal from the workforce while the parties were married.              The marital
                                         14


relationship has now been dissolved, and the parties are required to adjust

accordingly.

       Accordingly, we strike that portion of the dissolution decree awarding

Heather spousal support. Ben shall receive credit against the property award for

any amounts of spousal support already paid. See, e.g., In re Marriage of Jondle,

No. 10-1892, 2011 WL 4579192, at *5 (Iowa Ct. App. Oct. 5, 2011) (“There is no

support for awarding Regina additional alimony, and the alimony award is stricken.

Ronald is given credit against the property award for any amounts paid as alimony

under the district court's decree.”).

                                         D.

       Heather requests appellate attorney fees.       Appellate attorney fees are

awarded upon the court’s discretion and are not a matter of right. See In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering whether

to exercise discretion, the court considers “the needs of the party seeking the

award, the ability of the other party to pay, and the relative merits of the appeal.”

McDermott, 827 N.W.2d at 687 (quoting Okland, 699 N.W.2d at 270). We decline

to award Heather appellate attorney fees.

                                         III.

       For the foregoing reasons we affirm the decree as modified. We affirm the

dissolution of the parties’ marriage, the award of physical care of the children to

Heather, and the district court’s division of the parties’ property. We strike that

portion of the decree awarding Heather spousal support.

       AFFIRMED AS MODIFIED.

       Vogel, C.J., concurs; Vaitheswaran, J., dissents.
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VAITHESWARAN, Judge (dissenting)

       I respectfully dissent from the portion of the majority opinion striking the

spousal support award of $1000 per month beginning the first day of the month

following the sale of the home and continuing through September 1, 2020. I

believe the limited spousal support award is justified on the basis of the disparity

in earnings, the parents’ decision to have Heather spend less time in the workforce

while the children were under school age, and Heather’s need for time to

reestablish her earning capacity. See In re Marriage of Becker, 756 N.W.2d 822,

827 (Iowa 2008). While the award may not fit neatly into one of the established

spousal-support categories, the Iowa Supreme Court has not rested on labels.

See id. (“Factually, the support award may be a combination of” two kinds of

support.). I believe the district court acted equitably in awarding Heather spousal

support, and I would affirm that portion as well as all other parts of the thorough

decision.
