IN THE COURT OF APPEALS OF IOWA
No. 15-1570
Filed September 14, 2016
IN RE THE MARRIAGE OF DANIEL JAMES COMSTOCK
AND JESSICA COMSTOCK
Upon the Petition of
DANIEL JAMES COMSTOCK,
Petitioner-Appellant,
And Concerning
JESSICA COMSTOCK,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Richard H.
Davidson, Judge.
Daniel Comstock appeals the physical-care and child-support provisions
of the decree dissolving his marriage to Jessica Comstock. AFFIRMED AS
MODIFIED AND REMANDED.
Jon H. Johnson and Whitney A. Free of Johnson Law, P.L.C., Sidney, for
appellant.
Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
Daniel Comstock appeals the physical-care and child-support provisions
of the decree dissolving his marriage to Jessica Comstock. Daniel argues the
district court erred in awarding physical care of the parties’ three minor children
to Jessica. He also asserts, should the physical-care decision be affirmed, the
district court erred in calculating his child-support obligation by basing it on his
earning capacity rather than his actual earnings. On our de novo review, we
affirm as modified and remand.
I. Background Facts and Proceedings
Daniel and Jessica married in 2007. They have three children: T.C., born
in 2007; H.C., born in 2008; and J.C., born in 2011. The parties separated in
August 2014, when Daniel left the marital home and moved into his parents’
home with the parties’ three minor children. On August 28, Daniel filed a petition
for dissolution of marriage. On October 20, the district court entered a temporary
order awarding the parties joint legal and physical custody of their children,
alternating parenting time with the children on a weekly basis.
In January 2015, Daniel discovered Jessica had plans to move to
Tennessee with her boyfriend, Ken, and the parties’ children and sought
modification of the temporary custody order. The court granted Daniel’s request
and awarded him physical care of the children. The order provided Jessica was
to have “reasonable visitation with the children upon written notice to Daniel on
condition the children remain in the state of Iowa.” Jessica and Ken moved to
Tennessee in February. Jessica gained employment in Tennessee in March,
3
following which the court ordered her to pay $360 per month in temporary child
support to Daniel beginning in May. The matter came on for trial on July 1.
At the time of trial, Daniel lived with his parents and the parties’ three
minor children in Shenandoah with plans to move back into the marital home. In
2014, Daniel attended college full-time online studying criminal justice. He
considered himself to be a stay-at-home dad for four of the parties’ eight-year
marriage. From 2008 until 2011, Daniel did not work outside of the home. In
2011, Daniel started working for a private company and remained employed
there until 2013. Thereafter, Daniel worked intermittently for a temporary agency
and admitted he had quit two job assignments after only a matter of days
because he did not like the work. At the time of trial, Daniel had been employed
at one job assignment through the temporary agency for at least six months. By
the time of the September hearing, however, Daniel had been laid off.
Shortly after the parties separated, Jessica moved out of the marital home
and into the home of Ken’s father. In November 2014, Jessica moved back into
the marital home with Ken. In February 2015, she and Ken moved to
Tennessee, where they continued to reside together at the time of trial. Jessica
worked various jobs throughout the marriage and sometimes more than one job
at a time, in addition to starting full-time nursing school in 2014. In the past,
Jessica worked for a nonprofit agency that provided services to individuals with
disabilities and a residential treatment facility for at-risk youths with behavioral
issues. At the time of trial in July, Jessica was working for a call center in
Tennessee. By the hearing in September, Jessica stated she was not working
4
for the call center anymore but anticipated being rehired there after the
dissolution proceedings were finalized.
Jessica testified Daniel’s choice to stay home with the children was a
unilateral decision he made because he did not want to work. Jessica stated
after the birth of H.C. in 2008, she returned to work only three weeks after a
caesarean section delivery because Daniel refused to get a job. However, she
also acknowledged she worked varying shifts and more than one job at a time
and she depended on Daniel a lot to help with the children. Jessica testified she
took care of everything involving the children and their schooling and that the
task of getting the children up, ready, and to school often fell on her after she
returned home from an overnight shift at work. She testified when she worked
the day shift she would often get home around 11:30 p.m. or midnight to a messy
home and would still have to give the children baths and get them ready for bed.
She testified Daniel did not know the parties’ middle child’s diagnosis and she
scheduled and took H.C. to all of her appointments.
Before the trial court, Jessica asserted Daniel refused to allow her
visitation with the children between the time he moved out of the marital home
with the children at the end of August and the time of the temporary hearing in
mid-October 2014. Daniel denied the assertion and testified he allowed Jessica
to visit with the children at his parents’ home whenever she wanted but she did
not take advantage of his offer. Daniel also contended that on November 12,
2014, the district court modified the temporary custody order to address visitation
for the holidays. The court ordered Jessica would have visitation with the
children on Thanksgiving, but Jessica failed to exercise her visitation with the
5
children because she went to Tennessee for a church event. Daniel further
testified he offered Jessica additional visitation in summer 2015 but Jessica failed
to take advantage of the opportunity.
Jessica testified she moved to Tennessee because she believed there
would be better job opportunities for herself and Ken, a better education system
for the children, and a specialized program for the parties’ middle child, H.C.
Jessica also testified they moved to Tennessee to be closer to Ken’s family—Ken
testified his mother and sister lived in Tennessee, his father lived in Iowa, and his
children from a previous marriage lived in Kansas. Additionally, Jessica admitted
they had rarely seen his mother or sister since moving there six months before.
Following her move to Tennessee, Jessica saw the children only three
times between February and August 2015 due to financial reasons. In June,
Jessica exercised visitation with the children for two and a half weeks. She
offered to pay her younger sister to watch the children during the visit. At trial,
the children’s fifteen-year-old aunt testified Jessica and Ken worked all the time
and then would come home and fight in their bedroom. She testified the children
had good attitudes when they arrived in Tennessee and the youngest child was
potty trained; however, the children’s attitudes changed while they were there—
one child told the others she hated them and tried hitting the aunt or running
away—and the parties’ youngest child regressed in potty training. The aunt
testified Jessica and Ken yelled, screamed, and cursed at the children, Jessica
spanked or slapped the children and Ken grabbed the children by the face or
yanked them by the arm, and neither tried other methods of discipline. She
testified Jessica and Ken did not make meals for the children and instead
6
brought fast food home at night after work for a late dinner. She testified Jessica
rarely gave the children baths and the task often fell on the aunt instead. She
testified that at times the only food in Jessica and Ken’s home was the snacks
Daniel sent with them for the trip. She stated she called her mother—the
children’s maternal grandmother—complaining she was scared and there was no
food in the house, and the grandmother sent the aunt a care package of food and
other supplies for the aunt and children. The aunt also testified she had
observed Daniel cooking and cleaning for the children and disciplining the
children using the time-out method when spending time with the children in Iowa.
The principal of the school where the two oldest children had attended in
Iowa contributed a written statement, in which she wrote she had “observed and
witnessed a significant change since the change of residence and care” during
the 2014–2015 school year when the children began living with Daniel and their
maternal grandparents. She noted the children had better hygiene, were well-
rested, had an improved ready-to-learn demeanor, and also had better
attendance. The principal further stated:
After spending time with Mom, Jessica, the girls have come
to school with dirty faces, dirty clothes, and mismatched shoes.
Their hair has not been taken care of and is not clean, with days of
having food in their hair. [The children] are often tired after
spending the night with Mom. [H.C.] has fallen asleep several
times during the school days and [T.C.] is often easily agitated.
[The children] have shown consistency in the “ready to learn”
characteristics after spending time with their paternal grandparents
and Daniel. [H.C.’s] behavior has improved. Daniel has worked as
an education partner with the school by attending her
[Individualized Education Program (IEP) meetings] to provide more
services to [H.C.]. [T.C.] is more flexible and interacts with her
peers without agitation. The girls are well-rested, clean, and
anxious to be at school.
7
I have included a copy of their attendance for you to view
regarding my attendance concerns when these young ladies stay
with Mom. Every minute of their education matters.
This positive change for these young ladies in this short of
time has made a successful impact on their education in various
aspects.
The principal also testified at trial in July, stating both parents were
present at the children’s activities, although she acknowledged Jessica did not
attend any school activities for the children after she moved to Tennessee. The
principal recognized Jessica had attended more IEP meetings for the children
than Daniel, but acknowledged Daniel attended at least three or four meetings
and noted Jessica had left one meeting early. The record demonstrates Jessica
took the lead role in IEP meetings and initiated passing a notebook back and
forth with H.C.’s teacher so that the parties could communicate with the child’s
teacher regarding her progress.1 The principal also testified about attendance
issues involving the children in the past and stated the school did not have any
truancy concerns when the children were in Daniel’s care. Regarding the
children’s truancy, Jessica stated the parties’ middle child was often absent due
to doctors’ appointments, while the parties’ oldest child was often absent
because Daniel refused to get her ready for school and drop her off. Jessica
testified regarding an incident in which she was at the library prepping for her
own class and received a call from the school that the children were not there.
She stated when she asked Daniel about it, he told her someone from the school
had come to the home, but he did not answer the door.
1
However, the record also shows Jessica’s relationship with the school was not without
its struggles. The principal testified regarding an incident in which Jessica became
angry with the school secretary, and thereafter, Jessica was not allowed to be alone with
the secretary when she came to the school.
8
Daniel testified at trial that throughout the length of the marriage, Jessica
did fifty percent of the housework but believed he did much more than fifty
percent toward the end of the marriage. He also alleged Jessica trashed the
marital home after he left with the children in August 2014, testifying there was
trash, dog feces, and animal urine all over the floor and mold was growing on the
walls. He also testified there were no beds for the children in the home. Jessica
claimed the home was in poor condition when Daniel and the children moved out,
and she and Ken spent several weeks cleaning and fixing up the home before
they could move into it in November. However, she also admitted the family did
not have a dog and the dog came into the home after the parties separated.
Daniel further testified he discovered the home was trashed again after Jessica
and Ken moved to Tennessee and he had to clean and make repairs to the home
before it was habitable. Daniel also testified he got the mortgage caught up and
paid overdue utility bills on the home without Jessica’s help. Jessica admitted
she sold several household items from the home and did not use the proceeds
for marital debts. Jessica further admitted she continued to collect supplemental
security income payments as payee for the parties’ middle child even after Daniel
was awarded temporary physical custody of the children and was in arrears on
her child-support obligation.
On July 4, 2015, one of the parties’ children told Daniel and two other
members of Daniel’s family that Ken had sexually abused her. Daniel contacted
the Iowa Department of Human Services (DHS) and the family doctor, who
advised Daniel to take the child to the emergency room. Daniel also contacted
authorities in Tennessee, who investigated the claims and determined the
9
allegations to be unfounded. Due to the children’s allegations, Daniel filed an
emergency motion for modification of visitation, requesting a delay in Jessica’s
visitation with the children scheduled to begin on July 19. The district court
granted Daniel’s motion. On August 2, Daniel and Jessica exchanged the
children for a two-week visit. On August 11, Jessica filed a motion for
emergency modification of visitation, asking the district court to grant Jessica
sole legal and physical care of the children alleging Daniel and his family
members had coached the children to falsely accuse Ken of sexual abuse. The
court ordered the children to remain with Jessica in Tennessee until the
scheduled hearing on September 2 and terminated the order prohibiting contact
between Ken and the parties’ children. Jessica enrolled the two older children in
school in Tennessee, but because Tennessee did not have preschool for three-
year-olds, the youngest child was not eligible to attend preschool.2
The court reopened the record and held another day of testimony on
September 2. Jessica testified Daniel did not inform her of the allegations made
against Ken; instead, she learned about the allegations from her lawyer on July
17, two days before the children were scheduled to begin an extended visit with
her. Jessica admitted she argued with Ken “a little bit” while the children were
visiting them in June when the children’s aunt was babysitting, but denied
arguing with Ken within the preceding two months. The parties’ oldest child
testified she liked living with both Jessica and Daniel and that she missed her
dad. The child further stated, “My mom told me lies,” and upon further
2
The record indicates both of the parties’ older children attended preschool at age three
in Iowa. Additionally, Daniel testified J.C. was registered and had completed all of the
necessary screenings to attend preschool in Iowa.
10
questioning explained Jessica had told the child to lie to the interviewer in
Tennessee and say she wanted to live with Jessica.
On September 4, 2015, the district court entered a decree awarding
physical care to Jessica and reasonable and liberal visitation to Daniel. The
court ordered Daniel to pay $75 per month in child support to Jessica for
October, November, and December 2015, and ordered the amount of child
support to increase to $500 per month beginning in January 2016. Daniel
appeals.
II. Scope and Standard of Review
We review dissolution cases, which are tried in equity, de novo. Iowa R.
App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84 (Iowa
2012). While we give weight to the factual findings of the district court, especially
when considering the credibility of witnesses, we are not bound by them. Iowa
R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must
depend upon the facts of the particular case.” In re Marriage of Fennelly, 737
N.W.2d 97 (Iowa 2007) (citation omitted).
III. Analysis
Daniel claims the district court erred in awarding physical care of the
parties’ three minor children to Jessica. He also contends the court erred in
calculating his child support obligation based on his earning capacity rather than
his actual earnings.
A. Physical Care
When child custody and physical care are at issue in a marriage
dissolution case, the primary consideration is the best interests of the children.
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Iowa R. App. P. 6.904(3)(o). We look to the factors listed in Iowa Code section
598.41(3) (2013)3 and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa
1974),4 in making a physical-care determination. Also relevant to this decision
3
Iowa Code section 598.41(3) provides “the court shall consider the following factors” in
making a physical care determination:
a. Whether each parent would be a suitable custodian for the child.
b. Whether the psychological and emotional needs and development of
the child will suffer due to lack of active contact with and attention
from both parents.
c. Whether the parents can communicate with each other regarding the
child’s needs.
d. Whether both parents have actively cared for the child before and
since the separation.
e. Whether each parent can support the other parent’s relationship with
the child.
f. Whether the custody arrangement is in accord with the child’s wishes
or whether the child has strong opposition, taking into consideration
the child’s age and maturity.
g. Whether one or both the parents agree or are opposed to joint
custody.
h. The geographic proximity of the parents.
i. Whether the safety of the child, other children, or other parent will be
jeopardized by the awarding of joint custody or by unsupervised or
unrestricted visitation.
j. Whether a history of domestic violence, as defined in section 236.2,
exists. . . .
k. Whether a parent has allowed a person custody or control of, or
unsupervised access to a child after knowing the person is required to
register or is on the sex offender registry as a sex offender under
chapter 692A.
4
Additional factors the court should consider include:
(1) The characteristics of each child, including age, maturity,
mental and physical health.
(2) The emotional, social, moral, material, and educational needs
of the child.
(3) The characteristics of each parent, including age, character,
stability, mental and physical health.
(4) The capacity and interest of each parent to provide for the
emotional, social, moral, material, and educational needs of the child.
(5) The interpersonal relationship between the child and each
parent.
(6) The interpersonal relationship between the child and its
siblings.
(7) The effect on the child of continuing or disrupting an existing
custodial status.
(8) The nature of each proposed environment, including its
stability or wholesomeness.
12
are the factors of continuity, stability, communication, and approximation. See In
re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). Not all factors are
given equal consideration, and the weight attributed to each factor depends on
the specific facts and circumstances of each case. See In re Marriage of
Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Our objective is to place
the children in an environment likely to promote a healthy physical, mental, and
social maturity. Hansen, 733 N.W.2d at 695.
Jessica and Daniel both agreed the other is fit and proper to parent their
children and the children’s best interests are served by each parent being
involved in the children’s lives. It is obvious both parents love their children and
are capable of providing a stable home for them.
In its decree, the district court acknowledged there were “numerous
problems” during the parties’ marriage and both Jessica and Daniel “were
responsible for the family’s dysfunction.” The court noted Jessica worked long
hours while attending school and “did not believe Daniel was doing his part.”
Daniel testified he was a stay-at-home parent to save the family money on
daycare expenses. He further testified that although Jessica often got the
parties’ two oldest children ready in the mornings and took them to school, he
picked the children up from school, prepared their meals, and got them ready for
bed. Jessica testified Daniel stayed at home not because he wanted to save the
(9) The preference of the child, if the child is of sufficient age and
maturity.
(10) The report and recommendation of the attorney for the child
or other independent investigator.
(11) Available alternatives.
(12) Any other relevant matter the evidence in a particular case
may disclose.
13
family money but instead because he did not want to work. However, Jessica
admitted she relied heavily on Daniel to care for the children because she
worked long hours and attended school full time.
The district court did not make specific credibility findings in its written
ruling but obviously seemed skeptical about whether Daniel was “truly a stay-at-
home dad,” noting “for whatever reasons, it seems th[e] role of [getting the
children to school] often times fell on Jessica.” The court noted the children had
school attendance issues and “were often not adequately dressed and had a
difficult time staying awake” at school. The court found both parents were
responsible for meeting the needs of the children prior to their separation and
that some of these issues had existed then.
The school principal testified that during the 2014–2015 school year, she
had observed the children exhibit significant progress after being placed in
Daniel’s physical care. The principal stated after the children spent time with
Jessica, they had poor hygiene, mismatched shoes, and would be tired and have
behavioral problems. In contrast, the principal recognized after the children
spent time with Daniel, the children came to school with better hygiene, appeared
well-rested, were prepared with a ready-to-learn attitude, and had better
attendance. The court acknowledged the progress but concluded it was
“unknown . . . how much of the improvement was due to [Daniel] stepping up as
opposed to his mother . . . taking the leading role caring for her grandchildren.”
We recognize Jessica took the lead role in the children’s IEP meetings
and took H.C. to most, if not all, of her doctors’ appointments prior to the parties’
separation, but Daniel has not been uninvolved in the children’s care. He
14
attended several IEP meetings for the two older children over the years, and
regardless of why he did not work, the record clearly demonstrates Daniel
provided care for the children while Jessica was at work and school. See
Hansen, 733 N.W.2d at 697 (noting “the caregiving of parents in the post-divorce
world should be in rough proportion to that which predated the dissolution”). The
fact remains the children showed marked improvements in their cleanliness,
attitudes, and attendance at school after being placed in Daniel’s temporary care.
See id. (“[S]uccessful caregiving by one spouse in the past is a strong predictor
that future care of the children will be of the same quality.”).
The district court gave Daniel some credit when it recognized “he has
been employed the last six months leading up to the July 1 hearing date,” but
then became critical, writing
Yet, he seems to lack a strong work ethic that is required in all
families, but certainly as a single parent. While Daniel’s family
members have seen improvement in his role as father, it is difficult
to discern how much his mother provides in caring for the children.
On the other hand, Jessica is by all accounts a hard worker and
has always seemed to have numerous oars in the water. She has
been actively involved in [H.C.]’s IEP and has a history of working
with persons with special needs.
The district court seemed unconcerned that Jessica had moved to Tennessee
with her new boyfriend while the dissolution proceedings were ongoing and left
the children behind with Daniel. She testified she moved to Tennessee for better
job opportunities and because she believed Tennessee could provide the
children with a better education. Neither Jessica nor Ken had a job offer when
they moved to Tennessee. Jessica also asserted the move to Tennessee
allowed them to be closer to Ken’s family. Ken testified his mother and sister live
15
in Tennessee, but his father lives in Iowa and his two children from a prior
marriage live in Kansas. Jessica also admitted they had rarely seen Ken’s family
since moving to Tennessee in February. On the other hand, Daniel had a steady
job for six months leading up to the trial until he was laid off. Prior to the decree,
he brought the mortgage up to date and paid overdue utility bills. Daniel had
plans to live in the marital home where the children grew up and continue to live
near his and Jessica’s extended families.5
The district court also emphasized the investigation into the allegations of
abuse against Ken and noted Jessica’s contention that Daniel and his mother
“conspired to manipulate the children in making the abuse allegations,” and
determined, “If true, such an act of manipulation would all but preclude
consideration of Daniel as a primary caregiver.” The court noted the evidence
indicated Daniel’s mother “suggested the improper touching to the young
Comstock children,” which both Daniel and his mother denied. The court further
noted “the Comstock grandparents have done much to support their
grandchildren” and “seem[] to have accepted the results of the investigation.”
Ultimately, the court found Daniel’s failure to “immediately notif[y] Jessica upon
learning of the allegations made by their children . . . was not only a poor choice
but is a significant factor for the Court to consider when determining which parent
is most likely to support the other parent’s relationship with their children.”
We agree with Jessica and the district court that sexual-abuse allegations
are very serious, and Daniel should have informed her. Jessica admitted that if
5
We also note, placing the children in Daniel’s physical care would allow H.C. to
continue to be treated by the doctors who diagnosed her and have worked with her since
the age of three.
16
Daniel had informed her of the allegations, she would have relayed them to
Ken—possibly hindering the ongoing investigation into the matter. Daniel
contacted DHS in both Iowa and Tennessee and took the child to the emergency
room. Based on these facts, we do not agree with the district court that Daniel’s
failure to inform Jessica of the allegations is evidence he will not support her
relationship with the children in the future. On the contrary, we find Jessica’s
move to Tennessee, for seemingly no reason other than to begin a new life with
her new boyfriend, suggests she does not prioritize supporting Daniel’s
relationship with the children.6
The district court also seemingly found Jessica more credible when she
testified Daniel refused to allow her access to the children during the two-month
period between their separation and entry of the temporary custody order, and
Daniel less credible when he testified he offered visitation to Jessica whenever
she wanted during that period but told her the visits had to occur at his parents’
home where he and the children were residing because he feared Jessica would
leave the state with the children. The district court found: “Daniel’s failure to
keep Jessica informed of significant matters concerning her children combined
with his failure to allow her visitation with the children from the time he moved in
August 2014 until the temporary hearing demonstrates that supporting Jessica’s
relationship with the children is not a priority.”
6
We also note the irony in Jessica’s unproven complaint that Daniel and his family
coached the children to make false allegations against Ken, when there is clear
evidence in the record Jessica told the parties’ oldest child to lie and say she wanted to
live with Jessica.
17
To the extent to which that brief time period is of concern, those concerns
are neutralized by the record evidence that once the district court entered the
temporary order, Daniel fully complied with the order and did not interfere with
Jessica’s parenting time. The record also demonstrates the court modified the
temporary order in November 2014 to provide Jessica with visitation with the
children on Thanksgiving, but instead of exercising her visitation, Jessica
traveled to Tennessee for a church event. In January 2015, the court granted
Daniel’s request for a modification of the temporary order and ordered Daniel to
have physical care of the children pending a final hearing in the matter and
provided Jessica was to have visitation with the children so long as the children
remained in Iowa. Daniel testified he offered Jessica visitation with the children,
but Jessica claimed that due to financial reasons she could only exercise
visitation with the children three times between February and August 2015.
Those financial reasons were presumably the result of her decision to move out
of state with her boyfriend without either of them having secured employment.
The record also shows Daniel invited Jessica’s family to a birthday party he was
hosting for the children. Thus, her complaints directed at Daniel of denying her
access ring hollow against her own history of not exercising visitation when she
had every right to do so.
The court discussed factors supporting Daniel’s request for physical care
of the children, including “the number of extended family members that reside in
the Page County area from both Daniel’s family and Jessica’s family, the
children’s familiarity with the school system, and the fact that [H.C.] has treated
with Iowa doctors concerning her development issues,” but did not give them
18
much weight. The court ultimately determined “Jessica is best suited to have
primary care of the parties’ three children” for three main reasons: (1) “[s]he has
been employed throughout the marriage and shown she can provide a home for
the children,” (2) “[s]he has been actively involved in [H.C.]’s care since age three
and has experience with working with others with development issues,” and
(3) “the Court [took] Jessica at her word when she testified she could actively
support Daniel’s relationship with the children.”
We agree with the district court these are all factors we must consider in
making a physical-care determination, but unlike the district court, we cannot give
only a passing glance to other factors that weigh in Daniel’s favor. Daniel was
the primary caregiver for the children for most of the marriage. The two older
children showed significant improvement in their behaviors and hygiene at school
when in Daniel’s physical care. The record also indicates the parties relied on
their families extensively during the marriage and early years of the children’s
lives. Daniel’s parents regularly cared for the children when both parties had to
work and would spend time with the children for days and weeks at a time.
Jessica’s mother and sisters also cared for the children on numerous occasions.
It is obvious the children enjoy close ties to both extended families, all of whom
live in the Shenandoah area near Daniel and where the children have spent
almost their entire lives.
We commend Jessica for her devoted work ethic; however, we again note
that she moved to Tennessee without arranged employment, and when
employed, her schedule undoubtedly requires someone else to care for the
children when they are not in school. Jessica moved to Tennessee during the
19
middle of the dissolution proceedings, leaving the children behind in Daniel’s
care. When she had the children for visitation in the summer, she was unable to
adequately provide food and proper care for the children. Jessica does not have
any of her extended family nearby to help care for the children. Ken testified his
sister could care for the children if asked, but the children do not know Ken’s
sister and she is essentially a stranger to them. The availability of grandparents
to assist a parent in caring for children is a factor a court may consider in
determining which parent should receive physical care. Melchiori v. Kooi, 644
N.W.2d 365, 369 (Iowa Ct. App. 2002) (noting grandparents may be better
childcare providers than strangers); see also In re Marriage of Welbes, 327
N.W.2d 756, 758 (Iowa 1982) (affirming grant of physical care of child to father,
who had “assumed the responsibility of caring for her with the assistance of his
parents”); In re Petition of Purscell, 544 N.W.2d 466, 469 (Iowa Ct. App. 1995)
(placing physical care of child with father who lived with his parents and who
would receive assistance from them in caring for the child). Placing the children
in Daniel’s physical care in Iowa, near the children’s extended families on both
sides, ensures the children would have childcare providers whom they know and
trust and who have helped care for them their entire lives.
Upon our de novo review of the record, we find both parties are clearly
capable parents who can provide the children with a stable home. We recognize
uprooting the children from the home and school they have known for the past
year and asking them to move several states away from their new friends and
their mother will be difficult. However, for the reasons discussed above, we
conclude placing the children in the physical care of Daniel is in their long-term
20
best interests. We affirm as modified the portion of the district court’s decree
granting Jessica physical care of the parties’ three minor children.
Accordingly, we need not decide and do not reach the child-support issues
Daniel raises. We remand this case to the district court for determination of
Jessica’s child-support obligation based upon the present financial
circumstances of the parties.
B. Appellate Attorney Fees
Jessica requests appellate attorney fees.7 Appellate attorney fees are not
a matter of right, but rather rest in this court’s sole discretion. In re Marriage of
Okland, 699 N.W.2d 260, 270 (Iowa 2005). In determining whether to award
attorney fees, we consider “the needs of the party seeking the award, the ability
of the other party to pay, and the relative merits of the appeal.” Id. After
considering the relative financial positions of the parties and Daniel’s successful
appeal of the physical-care award, we decline to award Jessica appellate
attorney fees.
IV. Conclusion
We modify the district court’s decree to grant Daniel’s request for an
award of physical care of the parties’ three minor children. We remand the issue
of child support and other related matters to the district court for further
proceedings consistent with this opinion. We deny Jessica’s request for an
award of appellate attorney fees. Costs on appeal are assessed to Jessica.
AFFIRMED AS MODIFIED AND REMANDED.
7
In his reply brief, Daniel asserts he should be awarded appellate attorney fees. We do
not address issues raised for the first time in a party’s reply brief. See Hills Bank & Trust
Co. v. Converse, 772 N.W.2d 764, 770 (Iowa 2009).
In Re the Marriage of Daniel James Comstock and Jessica Comstock Upon the Petition of Daniel James Comstock, and Concerning Jessica Comstock
Combined Opinion