                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1939
                           Filed September 13, 2017


IN RE THE MARRIAGE OF ANDREW RIEHLE PAVLOVEC
AND AMBER MARIE PAVLOVEC

Upon the Petition of
ANDREW RIEHLE PAVLOVEC,
      Petitioner-Appellee,

And Concerning
AMBER MARIE PAVLOVEC,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.



      Amber Pavlovec appeals from the district court’s findings of fact,

conclusions of law, and decree dissolving her marriage to Andrew Pavlovec.

AFFIRMED AS MODIFIED.




      Thomas E. Maxwell of Leff Law Firm, L.L.P., Iowa City, for appellant.

      Natalie Hope Cronk of Cronk & Waterman, P.L.C., Iowa City, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
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DANILSON, Chief Judge.

        Amber Pavlovec appeals from the district court’s findings of fact,

conclusions of law, and decree dissolving her marriage to Andrew Pavlovec.

Amber challenges the child-custody and spousal-support provisions of the

decree. We conclude joint physical care is in the best interests of the children

and affirm. We additionally conclude the spousal-support award is inequitable

and modify the spousal-support provision accordingly.

I. Background Facts & Proceedings.

        Amber and Andrew were married on August 7, 2009. This action was

initiated in July 2014, the trial was held in 2016, and the decree was filed

August 31, 2016. The parties have two children: E.P., age nine, and R.P., age

six.

        Amber was thirty-three years old at the time the dissolution decree was

entered. She is employed as a pharmacist for the University of Iowa Hospitals

and Clinics, earning $106,892 per year. Andrew was thirty-one years old at the

time the decree was entered. Andrew is a part-time student attending classes for

engineering at the University of Iowa.      Although Andrew has had part-time

employment in the past, he was not employed at the time of the trial.

        The parties met in 2006 while they were both attending the University of

Iowa.    However, Andrew withdrew from the university in 2006 due to poor

grades. Amber began pharmacy school at the university in the fall of 2006 and

became pregnant with E.P. around the same time. Amber and Andrew agreed

Andrew would work full-time to support the family while Amber finished pharmacy

school and Andrew would return to college after Amber’s schooling was
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complete. Amber was to graduate from pharmacy school in May 2011, slightly

less than two years after the parties were married. Andrew began working nights

at a plastics molding factory. Amber also contributed to supporting the family

with income from work as a pharmacy intern and by taking the maximum amount

of student loans to pay for living expenses as well as her schooling. At the time

of trial, Amber owed approximately $230,000 in student-loan debt.

       When Amber completed pharmacy school in 2011, Andrew re-enrolled at

the University of Iowa as planned. Andrew took classes as a full-time student for

the fall 2011, fall 2012, and spring 2013 semesters.1 However, due to poor

academic performance, Andrew withdrew from all classes during the fall 2013

semester, withdrew from all but two classes during the spring 2014 semester,

and withdrew from all classes during the summer 2014 semester. Andrew did

not inform Amber he was not attending classes as planned. Andrew explained

that his poor academic performance was related to his distress due to the marital

problems beginning to arise.

       The breakdown of the marriage began in 2013 when Amber engaged in

inappropriate interactions with men other than Andrew, and Andrew, in turn,

sought relationships with other women. Amber and Andrew ultimately separated

in June 2014 after a domestic dispute resulted in the police being called and a

no-contact order entered between Amber and Andrew. Andrew was charged

with domestic abuse assault, but the charge was later dismissed.

1
  Andrew did not attend school during the spring 2012 semester because the parties
originally planned to move, and Andrew intended to begin schooling at Iowa State
University. Once Amber and Andrew decided they would not move after all, it was too
late for Andrew to enroll in classes at the University of Iowa. Therefore, he stayed home
and cared for the children from January to June 2012.
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      While the no-contact was in place, Andrew was unable to see the children

for approximately five weeks. Once the charge against him and the no-contact

order were dismissed, the parties entered into a temporary visitation agreement.

The record reveals Amber and Andrew were able to communicate with respect to

the children and exchange the children for visitation without discord in most

cases. However, the children did repeat negative comments made by Amber

about Andrew, and Andrew did call Amber names in front of the children during

at least one exchange. Amber was accused of possible abuse of E.P. when faint

marks were discovered on E.P.’s face and E.P. reported Amber slapped him as a

form of punishment. The department of human services (DHS) conducted a

child-abuse assessment, which initially resulted in a “confirmed” report, but the

report was amended to “not confirmed” on appeal.

      In its dissolution decree, the district court noted both parents have shown

poor judgment at times. However, the court determined:

              Despite the normal hard feelings present over the breakup of
      their relationship, it appears to this court, that with the passage of
      time and each party addressing their mental-health issues, that the
      parties can civilly and constructively communicate with each other
      to the extent necessary for joint physical care to work and for the
      well-being of their children.

      The court held joint physical care is in the best interests of the children.

As to Andrew’s request for spousal support, the court held that in accord with the

parties’ understanding that Andrew would work to support Amber throughout her

schooling and Amber would, in turn, support Andrew while he completed school,

“Andrew is entitled to limited rehabilitative alimony so that he can finish his
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schooling.” The court awarded Andrew spousal support in the amount of $2000

per month for thirty-six months. Amber now appeals.

II. Standard of Review.

          “An action for dissolution of marriage is an equitable proceeding and,

consequently, this court’s review is de novo.” In re Marriage of Thatcher, 864

N.W.2d 533, 537 (Iowa 2015). “Although we decide the issues raised on appeal

anew, we give weight to the trial court’s factual findings, especially with respect

to the credibility of the witnesses.” In re Marriage of Witten, 672 N.W.2d 768,

773 (Iowa 2003).

III. Analysis.

          Amber first contends joint physical care is not in the children’s best

interests.2 Iowa Code section 598.41(5)(a) (2014) permits the court to award

joint physical care upon the request of either parent and requires the court to

make “specific findings of fact and conclusions of law that the awarding of joint

physical care is not in the best interests of the child[ren]” if the court denies the

request for joint physical care.

          Physical care issues are not to be resolved upon perceived fairness
          to the spouses, but primarily upon what is best for the child. The
          objective of a physical care determination is to place the children in
          the environment most likely to bring them to health, both physically
          and mentally, and to social maturity.

In re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (emphasis in

original). Factors to be considered in determining the children’s best interests

include:


2
    Neither party contests the district court’s award of joint legal custody.
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        (1) “approximation”—what has been the historical care giving
       arrangement for the child[ren] between the two parties; (2) the
       ability of the spouses to communicate and show mutual respect; (3)
       the degree of conflict between the parents; and (4) “the degree to
       which the parents are in general agreement about their approach to
       daily matters.”

In re Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007) (citation

omitted).

        Upon our thorough review of the record, we agree with the district court

that joint physical care is in the children’s best interests in this case. Despite

both Amber and Andrew’s missteps throughout the pendency of this matter, both

parties have been actively involved in the child-rearing responsibilities from the

time that each child was born. The record reveals both Amber and Andrew are

involved in the children’s schooling and healthcare. Thus, neither party has a

significant advantage under the approximation rule. See Hansen, 733 N.W.2d at

697 (explaining the premise of the approximation rule “that the caregiving of

parents in the post-divorce world should be in rough proportion to that which

predated the dissolution”). It is clear Amber and Andrew both love their children

very much and both do all they can to provide happy and healthy lives for the

children.

       Although there has been not unexpected tension between them, Amber

and Andrew have been able to communicate with respect to the children in a civil

manner on most occasions.          The record indicates Amber and Andrew are

capable of working through their differences to carry out a care schedule that is

in the best interests of their children.
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       Additionally, Amber and Andrew live in close proximity to each other and,

therefore, a shared physical-care arrangement will not be unduly burdensome

and will allow the children to maintain the most stability and continuity of care

possible. See id. at 696. A joint-physical-care arrangement allowing the children

maximum time with each parent is in the children’s best interests. See Iowa

Code § 598.41(1)(a) (“The court, insofar as is reasonable and in the best interest

of the child[ren], shall order the custody award, including liberal visitation rights

where appropriate, which will assure the child[ren] the opportunity for the

maximum continuing physical and emotional contact with both parents . . . .”).

We therefore affirm the district court’s custody determination and the

corresponding child-support award.

       Amber also contests the district court’s spousal-support award.          The

court—upon consideration of the parties’ agreement that Andrew would work to

support the family while Amber completed school, and then Amber would do the

same while Andrew completed school—determined Andrew was entitled to

rehabilitative support in the amount of $2000 per month for thirty-six months

beginning on August 1, 2016.

       “Rehabilitative spousal support is ‘a way of supporting an economically

dependent spouse through a limited period of re-education or retraining following

divorce, thereby creating incentive and opportunity for that spouse to become

self-supporting.’” In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa 2008)

(citation omitted).   Section 598.21A(1) lists the factors to be considered in

determining if a spousal-support award is appropriate including, but not limited to:

the length of the marriage; the parties’ age and physical and emotional health;
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the distribution of property; each party’s education level; and the earning capacity

of the party seeking support. “Although our review of the district court’s award of

alimony is de novo, we give that court considerable latitude in making this

determination based on the criteria in section [598.21A(1)]. We will disturb that

determination only when there has been a failure to do equity.” In re Marriage of

Anliker, 694 N.W.2d 535, 540 (Iowa 2005).

       Amber contends the district court’s spousal-support award does not do

equity considering the relevant factors including the short duration of the

marriage. Amber asserts the spousal support awarded to Andrew will enable him

to enjoy a better standard of living than he enjoyed during the marriage. Amber

argues the spousal-support award is inequitable considering the equal division of

the parties’ minimal assets and her requirement to repay a significant amount of

student-loan debt—a portion of which was used to pay the parties’ living

expenses in addition to Andrew’s salary. While the parties’ mutual agreement

concerning Andrew’s financial contribution with the expectation of future

reciprocation by Amber is a factor to be considered, see Iowa Code

§ 598.21A(1)(h), Amber asserts consideration of all the factors indicates spousal-

support is inappropriate in this case.

       We agree the court’s spousal-support award in this case does not achieve

equity. This was a short-term marriage, lasting only six years. Andrew is young,

healthy, and will likely have a good earning capacity upon completion of his

college education.      Although the parties’ agreement that Amber would

reciprocate the support given to her by Andrew during her time in pharmacy

school is clear and undisputed, we also acknowledge Amber has not completed
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her education debt-free. Amber owes a significant amount in student-loan debt—

$230,000—a portion of which was used to pay family expenses while she was in

school. We also note Andrew did not take advantage of much of the opportunity

already afforded him by Amber to complete his schooling. Andrew withdrew from

classes for three consecutive semesters and then subsequently only attended

school part-time for the next year and a half leading up to the dissolution trial.

Considering the short duration of the parties’ marriage and the substantial

student-loan debt Amber incurred paying for both education costs and family

expenses, we conclude the spousal-support award is inequitable.

      We conclude Andrew is entitled to spousal support in the amount of $1500

per month for twelve months beginning on August 1, 2016. We believe $1500

per month over a period of one year is sufficient monies to cover Andrew’s

college expenses for about one year. Had Andrew been making reasonable

efforts to earn credits in the past, along with this additional year of expenses

paid, Andrew could have completed or come reasonably close to completing his

degree. The spousal-support provision of the decree is modified accordingly.

IV. Conclusion.

      We find joint physical care of the parties’ children as ordered by the district

court is in the children’s best interests and therefore affirm. We conclude the

spousal-support provision of the decree is inequitable and modify the provision to

award Andrew spousal support in the amount of $1500 per month for twelve

months beginning August 1, 2016.

      AFFIRMED AS MODIFIED.
